OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF CLASS A COMMON STOCK
AND
ALL OUTSTANDING SHARES OF CLASS B COMMON STOCK
OF
XXXXXXXX WINE ESTATES HOLDINGS, INC.
AT
$55.75 NET PER SHARE
BY
BORDEAUX ACQUISITION CORP.,
AN INDIRECT, WHOLLY OWNED SUBSIDIARY OF
XXXXXX'X BREWING GROUP LIMITED
----------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON FRIDAY, SEPTEMBER 29, 2000, UNLESS THE OFFER IS EXTENDED.
--------------------------------------------------------------------------------
The Offer is conditioned upon, among other things, there being validly
tendered and not withdrawn prior to the Expiration Date that number of shares of
Class A common stock, par value $0.01 per share (the "Class A Shares"), and
shares of Class B common stock, par value $0.01 per share (the "Class B Shares"
and, together with the Class A Shares, the "Shares"), of Xxxxxxxx Wine Estates
Holdings, Inc. that, together with any Shares that Purchaser has the right to
acquire pursuant to the Tender Agreement (excluding Shares subject to the Tender
Agreement that have been validly tendered and not withdrawn prior to the
Expiration Date) and any Shares then owned by Xxxxxx'x Brewing Group Limited or
any of its subsidiaries, constitutes at least a majority of the total voting
power of the outstanding securities of Beringer entitled to vote in the election
of directors or in a merger (the "Voting Securities"), calculated on a fully
diluted basis on the date of purchase ("on a fully diluted basis" having the
following meaning: as of any date, the number of Voting Securities outstanding,
together with the number of Voting Securities Beringer is then required to issue
pursuant to obligations outstanding at that date under employee stock options,
warrants, benefit plans or other rights to purchase or acquire Voting
Securities, assuming the absence of any vesting requirements or conditions) (the
"Minimum Condition"). The Offer is also subject to certain other conditions
contained in this Offer to Purchase. See the Introduction and Sections 1, 14 and
15 of this Offer to Purchase.
THE MEMBERS OF THE BOARD OF DIRECTORS OF BERINGER PRESENT AT A MEETING DULY
CALLED AND HELD ON AUGUST 28, 2000 HAVE UNANIMOUSLY (WITH ONE BERINGER BOARD
MEMBER ABSENT) DETERMINED THAT EACH OF THE TRANSACTIONS CONTEMPLATED BY THE
MERGER AGREEMENT, INCLUDING THE OFFER AND THE MERGER, IS FAIR TO AND IN THE BEST
INTERESTS OF BERINGER AND ITS STOCKHOLDERS, HAVE APPROVED THE OFFER AND ADOPTED
THE MERGER AGREEMENT AND APPROVED THE TENDER AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED THEREBY AND RECOMMEND THAT STOCKHOLDERS ACCEPT THE OFFER AND TENDER
THEIR SHARES PURSUANT TO THE OFFER.
XXXXXX'X AND BORDEAUX ACQUISITION CORP. ("PURCHASER") HAVE ENTERED INTO A
VOTING, TENDER AND OPTION AGREEMENT, DATED AUGUST 28, 2000, WITH ENTITIES
AFFILIATED WITH THE TEXAS PACIFIC GROUP AND WITH CERTAIN MEMBERS OF THE BERINGER
BOARD AND XXXXXXXX'X SENIOR MANAGEMENT PURSUANT TO WHICH THESE ENTITIES AND
PERSONS HAVE AGREED, AMONG OTHER THINGS, TO TENDER THEIR SHARES IN THE OFFER.
THESE STOCKHOLDERS OWN A SUFFICIENT NUMBER OF SHARES SO THAT THE TENDER OF THEIR
SHARES IN THE OFFER AS CONTEMPLATED BY THE TENDER AGREEMENT WILL SATISFY THE
MINIMUM CONDITION.
------------------------
Any stockholder desiring to tender all or a portion of its Shares should
either (1) complete and sign the appropriate Letter(s) of Transmittal in
accordance with the instructions in such Letter of Transmittal, mail or deliver
such Letter(s) of Transmittal and any other required documents to the Depositary
and either deliver the certificates for those Shares to the Depositary along
with such Letter(s) of Transmittal or tender those Shares pursuant to the
procedures for book-entry transfer set forth in Section 3 hereof or (2) request
its broker, dealer, commercial bank, trust company or other nominee to effect
the tender on its behalf. Any stockholder whose Shares are registered in the
name of a broker, dealer, commercial bank, trust company or other nominee must
contact that broker, dealer, commercial bank, trust company or other nominee if
the stockholder desires to tender such Shares.
Any stockholder who desires to tender Shares and whose certificate(s)
representing those Shares are not immediately available or who cannot comply
with the procedures for book-entry transfer on a timely basis must tender those
Shares by following the procedures for guaranteed delivery set forth in Section
3 hereof.
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone numbers
set forth on the back cover of this Offer to Purchase. Requests for additional
copies of this Offer to Purchase, the Letter of Transmittal and other related
materials may be directed to the Dealer Manager, Information Agent or to
brokers, dealers, commercial banks or trust companies.
The Dealer Manager for the Offer is:
UBS WARBURG LLC
SEPTEMBER 1, 2000
TABLE OF CONTENTS
PAGE
--------
SUMMARY TERM SHEET....................................................... i
INTRODUCTION............................................................. 1
1. Terms of the Offer.......................................... 3
2. Acceptance for Payment and Payment for Shares............... 6
3. Procedure for Tendering Shares.............................. 7
4. Withdrawal Rights........................................... 10
5. Certain Federal Income Tax Consequences of the Offer and the
Merger.................................................... 11
6. Price Range of the Shares; Dividends on the Shares.......... 12
7. Effect of the Offer on the Market for Class B Shares; Stock
Exchange Listing and Exchange Act Registration; and Margin
Securities................................................ 13
8. Certain Information Concerning Beringer..................... 14
9. Certain Information Concerning Purchaser and Xxxxxx'x....... 15
10. Source and Amount of Funds.................................. 16
11. Background of the Offer..................................... 19
12. Purpose of the Offer and the Merger; Plans for Beringer; the
Merger Agreement; Other Matters........................... 20
13. Dividends and Distributions................................. 42
14. Certain Conditions of the Offer............................. 43
15. Certain Legal Matters and Regulatory Approvals.............. 44
16. Fees and Expenses........................................... 46
17. Miscellaneous............................................... 47
SCHEDULE I............................................................... I-1
SUMMARY TERM SHEET
Bordeaux Acquisition Corp. is offering to purchase all of the outstanding
shares of Class A common stock and Class B common stock of Xxxxxxxx Wine Estates
Holdings, Inc. for $55.75 per share in cash, without interest. The following are
some of the questions you, as a stockholder of Beringer, may have and answers to
those questions. We urge you to read carefully the remainder of this Offer to
Purchase and the Letter of Transmittal because this summary term sheet may not
include all the information that is important to you. Additional important
information is contained in the remainder of this Offer to Purchase and the
Letter of Transmittal.
WHO IS OFFERING TO BUY MY SHARES?
The offeror is Bordeaux Acquisition Corp., which we refer to as Purchaser in
this Offer to Purchase. Purchaser is a Delaware corporation formed for the
purpose of making a tender offer for all of the outstanding common stock of
Beringer. Purchaser is an indirect, wholly owned subsidiary of Xxxxxx'x Brewing
Group Limited, a corporation organized under the laws of the State of South
Australia, Commonwealth of Australia. See the "Introduction" and
Section 8--"Certain Information Concerning Purchaser and Xxxxxx'x" of this Offer
to Purchase.
WHAT DOES XXXXXXXX'X BOARD OF DIRECTORS THINK OF THE OFFER?
Purchaser is making the offer pursuant to a merger agreement among Beringer,
Xxxxxx'x and Purchaser. The Beringer Board approved the merger agreement, the
tender agreement described below, and the offer and the merger by an unanimous
vote of all directors in attendance at the meeting (with one director absent).
The Beringer Board has determined that the terms of the offer and the merger are
fair to, and in the best interests of, the stockholders of Beringer and
recommends that you tender your shares in the offer. See the "Introduction" of
this Offer to Purchase and the Solicitation/ Recommendation Statement on
Schedule 14D-9 that is being provided to you with this Offer to Purchase.
WHAT ARE THE CLASSES AND AMOUNTS OF SHARES SOUGHT IN THE OFFER?
Purchaser is seeking to purchase all of the outstanding shares of Class A
common stock and Class B common stock of Beringer. See the "Introduction" of
this Offer to Purchase.
HOW MUCH ARE YOU OFFERING TO PAY AND WHAT IS THE FORM OF PAYMENT?
Purchaser is offering to pay cash of $55.75 per share, net to you but
without interest.
HAVE OTHER STOCKHOLDERS OF BERINGER COMMITTED TO TENDER THEIR SHARES?
Affiliates of the Texas Pacific Group and certain members of the Beringer
Board and its senior management have agreed to tender their shares in the offer.
These stockholders own a sufficient number of shares so that the tender of their
shares as required by the tender agreement will satisfy the minimum condition
contained in the offer. See "What are the Most Significant Conditions to the
Offer" in this summary term sheet. The agreement to tender will remain in place
unless the merger agreement is terminated. See Section 12--"Purpose of the Offer
and the Merger; Plans for Beringer; the Merger Agreement; Other Matters" of this
Offer to Purchase.
WILL I HAVE TO PAY ANY FEES OR COMMISSIONS?
If you are the record owner of your shares and you tender your shares to us
in the offer, you will not have to pay brokerage fees or similar expenses. If
you own your shares through a broker or other nominee, and your broker tenders
your shares on your behalf, your broker or nominee may charge you a fee for
doing so. You should consult your broker or nominee to determine whether any
charges will apply. See the "Introduction" of this Offer to Purchase.
DO YOU HAVE THE FINANCIAL RESOURCES TO MAKE PAYMENT?
Xxxxxx'x will provide Purchaser with approximately $1.25 billion, which
Purchaser will use to purchase all shares validly tendered and not withdrawn in
the offer and to provide funding for the merger that is expected to follow the
successful completion of the offer. Xxxxxx'x expects to obtain these funds
through a combination of an equity offering, a bond offering and bank financing.
Purchaser's offer is not conditioned upon any financing arrangements. See
Section 10--"Source and Amount of Funds" of this Offer to Purchase.
HOW LONG DO I HAVE TO DECIDE WHETHER TO TENDER IN THE OFFER?
You will have at least until 12:00 midnight, New York City time, on
September 29, 2000 to decide whether to tender your shares in the offer. If you
cannot deliver everything that is required in order to make a valid tender by
that time, you may be able to use a guaranteed delivery procedure, which is
described later in this Offer to Purchase. See Section 1--"Terms of the Offer"
and Section 3 "Procedure for Tendering Shares" of this Offer to Purchase.
CAN THE OFFER BE EXTENDED AND, IF IT IS EXTENDED, HOW WILL I BE NOTIFIED?
Subject to certain limitations in the merger agreement, Purchaser may, in
its sole discretion, elect to extend the offer at any time before 9:00 a.m., New
York City time, on the next business day after the previously scheduled
expiration date. Purchaser may also elect to provide a "subsequent offering
period" for the offer. A subsequent offering period, if Purchaser includes one,
will be an additional period of time beginning after Purchaser has purchased
shares tendered during the offer during which stockholders may tender their
shares and receive the offer consideration. During the subsequent offering
period no tendered shares may be withdrawn. If Xxxxxxxxx decides to provide a
subsequent offering period, Purchaser will make a public announcement of its
decision at least five business days prior to the scheduled expiration date.
Purchaser does not currently intend to include a subsequent offering period,
although it reserves the right to do so. If Purchaser extends the offer or
provides a subsequent offering period, Purchaser will make a public announcement
of the extension or subsequent offering period by issuing a release to the Dow
Xxxxx News Service. See Section 1--"Terms of the Offer" of this Offer to
Purchase.
WHAT ARE THE MOST SIGNIFICANT CONDITIONS TO THE OFFER?
Purchaser's obligation to accept for payment, purchase or pay for any shares
tendered depends upon a number of conditions, including:
- There must be validly tendered and not withdrawn prior to the expiration
of the offer that number of shares of Beringer that, together with any
shares then owned by Xxxxxx'x or any of its subsidiaries, represents a
majority of the total voting power of the outstanding securities of
Beringer entitled to vote in the election of directors or in a merger, on
a fully diluted basis (I.E., as though all options or other shares
convertible or exercisable or exchangeable for Beringer shares had been so
converted, exercised or exchanged). Any shares that Purchaser has the
right to acquire under the tender agreement other than those shares
tendered in the offer will be considered to be tendered in determining
whether this condition is satisfied. This condition is referred to in the
merger agreement as the "minimum condition."
- The applicable waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, must have expired or have been
waived.
The offer is also subject to a number of other conditions. See
Section 14--"Certain Conditions of the Offer" of this Offer to Purchase.
ii
WILL THE TENDER OFFER BE FOLLOWED BY A MERGER IF ALL THE BERINGER SHARES ARE NOT
TENDERED IN THE OFFER?
If Purchaser accepts for payment and pays for at least a majority of the
total voting power of the outstanding shares of Beringer, Purchaser will be
merged with Beringer, and all remaining shares, other than shares owned by
holders who assert appraisal rights, will be converted into the right to receive
$55.75 per share in cash. See the "Introduction" of this Offer to Purchase. If
Purchaser accepts for payment and pays for 100% of Xxxxxxxx'x Class A shares and
at least 90% of Xxxxxxxx'x Class B shares, the merger will occur within a few
days after the offer expires. If Purchaser acquires fewer Beringer shares than
described in the prior sentence, Purchaser expects that the merger will occur
within four months. See Section 12--"Purpose of the Offer and the Merger; Plans
for Beringer; the Merger Agreement; Other Matters" of this Offer to Purchase.
Following the proposed merger, Beringer will be the surviving corporation and an
indirect, wholly owned subsidiary of Xxxxxx'x.
HOW DO I TENDER MY SHARES?
If you wish to accept our offer, this is what you must do:
- If you hold your shares through a broker or bank, you should contact your
broker or bank and give instructions to tender your shares.
- If you are a record holder and have your stock certificate, you must
complete and sign the enclosed Letter of Transmittal and send it with your
stock certificate to the Depositary for the offer or follow the procedures
described in the Offer to Purchase and the Letter of Transmittal for
book-entry transfer. These materials must reach the Depositary before the
offer expires. Detailed instructions are contained in the Letter of
Transmittal and Section 3--"Procedures for Tendering Shares" of this Offer
to Purchase.
- If you are a record holder but your stock certificate is not available or
you cannot deliver it to the Depositary before the offer expires, you may
be able to tender your shares using the enclosed Notice of Guaranteed
Delivery.
See Section 3--"Procedures for Tendering Shares" of this Offer to Purchase.
UNTIL WHAT TIME CAN I WITHDRAW PREVIOUSLY TENDERED SHARES?
You can withdraw shares at any time until the offer has expired and, if
Xxxxxxxxx has not agreed to accept your shares for payment by October 31, 2000,
you can withdraw them at any time thereafter so long as Purchaser has not yet
accepted your shares for payment. This right to withdraw will not apply to any
subsequent offering period discussed in Section 1, if a subsequent offer period
is provided. See Section 4 -- "Withdrawal Rights" of this Offer to Purchase.
HOW DO I WITHDRAW PREVIOUSLY TENDERED SHARES?
To withdraw shares, you must deliver a written notice of withdrawal, or a
facsimile of one, with the required information to the Depositary while you
still have the right to withdraw the shares. If you tendered your shares by
giving instructions to a broker or nominee, you must instruct your broker or
nominee to arrange for the withdrawal of your shares. See
Section 4--"Withdrawal Rights" of this Offer to Purchase.
IF SHARES ARE TENDERED AND ACCEPTED FOR PAYMENT, XXXX XXXXXXXX CONTINUE AS A
PUBLIC COMPANY?
No. If the merger takes place, Beringer will no longer be publicly owned.
Even if the merger does not take place, if Purchaser purchases all of the
tendered shares, there may be so few remaining stockholders and publicly held
shares that:
- Beringer common stock may no longer meet the published guidelines of
Nasdaq for continued listing and may be taken off the Nasdaq National
Market;
iii
- there may not be a public trading market for Xxxxxxxx'x common stock; and
- Beringer may cease making filings with the Securities and Exchange
Commission or otherwise cease being required to comply with the Securities
and Exchange Commission's rules relating to publicly held companies.
See Section 7--"Effect of the Offer on the Market for the Class B Shares;
Stock Exchange Listing and Exchange Act Registration, and Margin Securities" of
this Offer to Purchase.
IF I DECIDE NOT TO TENDER, HOW WILL THE OFFER AFFECT MY SHARES?
If the merger takes place, stockholders not tendering in the offer will
receive the same amount of cash per share that they would have received had they
tendered their shares in the offer (subject to their right to pursue appraisal
under Delaware law). Therefore, if the merger takes place, the only difference
to you between tendering your shares and not tendering your shares is that you
will be paid earlier if you tender your shares. Although we expect the merger to
occur, if it does not take place, the number of stockholders and shares of
Beringer which are still in the hands of the public may be so small that there
no longer will be an active public trading market (or, possibly, there may not
be any public trading market) for the Beringer shares. Also, as described above,
Beringer may cease making filings with the Securities and Exchange Commission
and may not be required to comply with the Securities and Exchange Commission's
rules relating to publicly held companies. See the "Introduction" and
Section 7--"Effect of the Offer on the Market for Class B Shares, Stock Exchange
Listing and Exchange Act Registration, and Margin Securities" of this Offer to
Purchase.
WHAT IS THE MARKET VALUE OF MY BERINGER SHARES AS OF A RECENT DATE?
On August 25, 2000, the last full trading day before we announced the offer
and the possible subsequent merger, the last sale price of Beringer Class B
common stock reported on the Nasdaq stock exchange was $43.50 per share. Between
December 31, 1999 and August 28, 2000, the price of a share of Beringer Class B
common stock ranged between $32.31 and $47.72. On August 31, 2000, the last full
trading day prior to the date of this Offer to Purchase, the last sale price of
Beringer Class B common stock was $55.31 per share. You should obtain a recent
quote for Beringer Class B common stock before deciding whether to tender your
shares. Beringer Class A common stock is not publicly traded. See
Section 6--"Price Range of the Shares; Dividends on the Shares" of this Offer to
Purchase.
DO I HAVE APPRAISAL RIGHTS?
You do not have any rights to appraisal in the offer but, if you so choose,
you are entitled to exercise appraisal rights in the merger so long as you do
not vote your outstanding shares of Beringer in favor of the merger and so long
as you take all other steps required to perfect your rights. See
Section 12--"Purpose of the Offer and the Merger; Plans for Beringer; the Merger
Agreement; Other Matters" of this Offer to Purchase.
WHO CAN I TALK TO IF I HAVE QUESTIONS ABOUT THE TENDER OFFER?
You may call:
- MacKenzie Partners, Inc. at (000) 000-0000 (toll free); or (000) 000-0000
(call collect); or
- UBS Warburg LLC at (000) 000-0000 (call collect);
MacKenzie Partners, Inc. is acting as the information agent and UBS Warburg
LLC is acting as the dealer manager for the offer. See the back cover of this
Offer to Purchase.
iv
To the Holders of Class A Common Stock and Class B Common Stock of
Xxxxxxxx Wine Estates Holdings, Inc.
INTRODUCTION
Bordeaux Acquisition Corp., a Delaware corporation ("Purchaser") and an
indirect, wholly owned subsidiary of Xxxxxx'x Brewing Group Limited, a
corporation organized under the laws of the State of South Australia,
Commonwealth of Australia ("Xxxxxx'x"), hereby offers to purchase all
outstanding shares of Class A common stock, par value $0.01 per share (the
"Class A Shares"), of Xxxxxxxx Wine Estates Holdings, Inc., a Delaware
corporation ("Beringer") and all outstanding shares of Class B common stock, par
value $0.01 per share (the "Class B Shares" and, together with the Class A
Shares, the "Shares"), of Beringer at a purchase price of $55.75 per Share, net
to the seller in cash, without interest, prorated for fractional Shares, on the
terms and subject to the conditions set forth in this Offer to Purchase and in
the related Letter of Transmittal (which, together with any amendments or
supplements hereto or thereto, collectively constitute the "Offer").
Tendering stockholders who have Shares registered in their own name and who
tender directly to the Depositary will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, transfer taxes on the purchase of Shares pursuant to the Offer.
Stockholders who hold their Shares through their broker or bank should consult
with such institution as to whether there are any fees applicable to a tender of
Shares. Purchaser will pay all charges and expenses of UBS Warburg LLC, as the
dealer manager (the "Dealer Manager"), Equiserve, L.P., as the depositary (the
"Depositary"), and MacKenzie Partners, Inc., as the information agent (the
"Information Agent"), in connection with the Offer. See Section 16.
THE MEMBERS OF THE BERINGER BOARD OF DIRECTORS (THE "BERINGER BOARD")
PRESENT AT A MEETING DULY CALLED AND HELD ON AUGUST 28, 2000 HAVE UNANIMOUSLY
(WITH ONE BERINGER BOARD MEMBER ABSENT) DETERMINED THAT EACH OF THE TRANSACTIONS
CONTEMPLATED BY THE MERGER AGREEMENT, INCLUDING THE OFFER AND THE MERGER, IS
FAIR TO AND IN THE BEST INTERESTS OF BERINGER AND ITS STOCKHOLDERS, HAVE
APPROVED THE OFFER AND ADOPTED THE MERGER AGREEMENT AND APPROVED THE TENDER
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY AND RECOMMEND THAT
STOCKHOLDERS ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT TO THE OFFER.
Certain stockholders of Beringer, Purchaser and Xxxxxx'x have entered into a
Tender, Voting and Option Agreement, dated August 28, 2000 (the "Tender
Agreement"), pursuant to which the Beringer stockholders party thereto (the
"Selling Stockholders") have agreed, among other things, to tender in the Offer
the Shares beneficially owned by them and vote their Shares in favor of the
Merger and against proposals adverse to or conflicting with the transactions
contemplated by the Merger Agreement and have granted an irrevocable proxy to
that effect. The Selling Stockholders have also granted Xxxxxx'x an option to
purchase the Shares beneficially owned by them at the Per Share Amount under
certain circumstances. The option is exercisable if the Offer is consummated but
(whether due to improper tender or withdrawal of tender or breach of the Tender
Agreement) Purchaser has not accepted for payment and paid for all of the Shares
subject to the Tender Agreement. The Selling Stockholders include TPG GenPar,
L.P., TPG Partners, L.P., TPG Parallel I, L.P. and Wine Partners, L.P., which
entities are affiliated with the Texas Pacific Group (together, the "Texas
Pacific Group"), and certain members of the Beringer Board and Xxxxxxxx'x senior
management. The Selling Stockholders own a sufficient number of Shares so that
the tender of their Shares in the Offer as contemplated by the Tender Agreement
will satisfy the Minimum Condition. See Section 12. The Tender Agreement will
terminate if the Merger Agreement is terminated, except that in certain
circumstances, Xxxxxx'x will be entitled to receive 50% of the difference
between $55.75 and any amount received by the Texas Pacific Group in any sale or
business combination of Xxxxxxxx'x or
sale of the Texas Pacific Group's Shares prior to the first anniversary of the
date that the Merger Agreement is terminated.
BERINGER HAS ADVISED XXXXXX'X THAT XXXXXXX, XXXXX & CO., XXXXXXXX'X
FINANCIAL ADVISOR, HAS DELIVERED TO THE BERINGER BOARD A WRITTEN OPINION, DATED
AUGUST 28, 2000, TO THE EFFECT THAT, AS OF SUCH
DATE AND BASED ON AND SUBJECT TO CERTAIN MATTERS STATED IN SUCH OPINION, THE
$55.75 PER SHARE CASH CONSIDERATION TO BE RECEIVED IN THE OFFER AND THE MERGER
BY STOCKHOLDERS (OTHER THAN XXXXXX'X AND ITS AFFILIATES) WAS FAIR, FROM A
FINANCIAL POINT OF VIEW, TO SUCH STOCKHOLDERS. A COPY OF XXXXXXX, XXXXX & CO.'S
WRITTEN OPINION IS CONTAINED IN XXXXXXXX'X SOLICITATION/RECOMMENDATION STATEMENT
ON SCHEDULE 14D-9 (THE "SCHEDULE 14D-9") FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION (THE "COMMISSION") IN CONNECTION WITH THE OFFER, A COPY OF WHICH IS
BEING FURNISHED TO STOCKHOLDERS CONCURRENTLY WITH THIS OFFER TO PURCHASE.
STOCKHOLDERS ARE URGED TO READ THE OPINION IN ITS ENTIRETY FOR A DESCRIPTION OF
THE ASSUMPTIONS MADE, MATTERS CONSIDERED AND LIMITATIONS OF THE REVIEW
UNDERTAKEN BY XXXXXXX, XXXXX & CO.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE THAT NUMBER OF SHARES
THAT, TOGETHER WITH ANY SHARES THAT PURCHASER HAS THE RIGHT TO ACQUIRE PURSUANT
TO THE TENDER AGREEMENT (EXCLUDING SHARES SUBJECT TO THE TENDER AGREEMENT THAT
HAVE BEEN VALIDLY TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE) AND
ANY SHARES THEN OWNED BY XXXXXX'X OR ANY OF ITS SUBSIDIARIES, CONSTITUTES AT
LEAST A MAJORITY OF THE TOTAL VOTING POWER OF THE OUTSTANDING SECURITIES OF
BERINGER ENTITLED TO VOTE IN THE ELECTION OF DIRECTORS OR IN A MERGER (THE
"VOTING SECURITIES"), CALCULATED ON A FULLY DILUTED BASIS ON THE DATE OF
PURCHASE (THE "MINIMUM CONDITION"). THE OFFER IS ALSO SUBJECT TO CERTAIN OTHER
CONDITIONS CONTAINED IN THIS OFFER TO PURCHASE. SEE SECTIONS 1, 14 AND 15.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
as of August 28, 2000 (the "Merger Agreement"), among Xxxxxx'x, Purchaser and
Beringer. The Merger Agreement provides, among other things, for the
commencement of the Offer by Purchaser and further provides that after the
purchase of Shares in the Offer, subject to the satisfaction or waiver of
certain conditions, Purchaser will be merged with and into Beringer (the
"Merger"), with Beringer surviving the Merger as an indirect, wholly owned
subsidiary of Xxxxxx'x (the "Surviving Corporation"). In the Merger, each Share
(excluding Shares owned by stockholders who have properly exercised their
dissenters' rights under Delaware law, Shares held in the treasury of Beringer
and Shares owned by Xxxxxx'x or any direct or indirect, wholly owned subsidiary
of Xxxxxx'x immediately before the Effective Time) issued and outstanding
immediately prior to the effective time of the Merger (the "Effective Time")
will be canceled and extinguished and converted without any action on the part
of the holders of Shares at the Effective Time into the right to receive $55.75
per Share (or any greater amount paid for Shares pursuant to the Offer (the "Per
Share Amount")), in cash payable to the holder thereof, without interest, less
any required withholding taxes and, in certain circumstances, stock transfer
taxes (the "Merger Consideration").
Beringer has informed Xxxxxxxxx that, as of August 28, 2000, there were
1,337,962 Class A Shares outstanding and 18,439,214 Class B Shares outstanding
and 1,854,238 Class B Shares reserved for issuance upon the exercise of
outstanding stock options ("Options") granted under Xxxxxxxx'x equity incentive
plans (collectively, the "Stock Option Plans"). Class A Shares are entitled to
20 votes per Class A Share; however, Class A Shares will automatically be
converted into Class B Shares if the Class A Shares are purchased by Purchaser.
As a result, as of such date, the determination of the number of Shares that
must be validly tendered and not properly withdrawn prior to the Expiration Date
in order to satisfy the Minimum Condition will depend on the relative number of
Class A Shares and Class B Shares tendered. The Selling Stockholders who hold
1,312,530 Class A Shares and 9,426,352 Class B Shares and have options to
purchase 1,124,974 Class B Shares have agreed in the Tender Agreement to tender
their Shares in the Offer. Even if no Class A Shares or Class B Shares are
tendered other than those held by the Selling Stockholders, the Minimum
Condition would be satisfied with the tender and purchase by Purchaser of these
Shares in accordance with the Tender Agreement. Beringer has been advised, and
has informed Xxxxxx'x, that each of its other directors and executive officers
intends to tender pursuant to the Offer all Shares owned of record and
beneficially by him or her, except to the extent that such tender would require
disgorgement of profits from any such tender
2
to Beringer under Section 16 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
The completion of the Merger is subject to the satisfaction or waiver of a
number of conditions, including, if required, the approval of the Merger by the
requisite vote or consent of the stockholders. Xxxxxxxx'x Certificate of
Incorporation and Delaware law require the affirmative vote of holders of a
majority of the outstanding Shares to approve the Merger. As a result, if the
Minimum Condition and the other conditions to the Offer are satisfied and the
Offer is consummated, Purchaser will own a sufficient number of Shares to ensure
that the Merger will be approved. Under Delaware law, if after consummation of
the Offer Purchaser owns at least 90% of each class of Shares then outstanding,
Purchaser will be able to cause the Merger to occur without a vote of Xxxxxxxx'x
stockholders. Because Class A Shares tendered in the Offer will automatically
convert into Class B Shares upon purchase by Purchaser, Purchaser must acquire
100% of the currently outstanding Class A Shares and at least 90% of the
then-outstanding Class B Shares in order to effect the Merger without a vote of
Xxxxxxxx'x stockholders. If Purchaser acquires less than these amounts of
Shares, a vote of Xxxxxxxx'x stockholders will be required under Delaware law to
approve the Merger, and a significantly longer period of time will be required
to effect the Merger. See Section 12. As of the date of this Offer to Purchase,
neither Xxxxxx'x nor Purchaser beneficially owns any Shares other than pursuant
to the Tender Agreement.
No appraisal rights are available in connection with the Offer. Stockholders
may exercise appraisal rights in connection with the Merger regardless of
whether the Merger is consummated with or without a vote of the stockholders.
The Merger Agreement is more fully described in Section 12. Certain federal
income tax consequences of the sale of Shares pursuant to the Offer and the
conversion of Shares into the Merger Consideration pursuant to the Merger are
described in Section 5.
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION THAT SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE
WITH RESPECT TO THE OFFER.
1. TERMS OF THE OFFER
On the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension or
amendment), Purchaser will accept for payment (and thereby purchase) all Shares
that are validly tendered and not withdrawn in accordance with Section 4 prior
to the Expiration Date. As used in the Offer, the term "Expiration Date" means
12:00 midnight, New York City time, Friday, September 29, 2000, unless and until
Purchaser, in accordance with the terms of the Offer and the Merger Agreement,
extends the period of time during which the Offer is open, in which event the
term "Expiration Date" means the latest time and date on which the Offer, as so
extended, expires.
The Offer is conditioned upon, among other things, satisfaction of the
Minimum Condition. The Offer is also subject to certain other conditions set
forth in Section 14, including the expiration or termination of all waiting
periods imposed by the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended, and the regulations thereunder (the "HSR Act"). Subject to the terms of
the Merger Agreement, without the prior written consent of Beringer, Purchaser
will not, and Xxxxxx'x will cause Purchaser not to:
- Decrease or change the form of the Per Share Amount;
- Decrease the number of Shares sought to be purchased in the Offer;
- Amend or waive the Minimum Condition or impose conditions other than the
offer conditions set forth in Section 14 hereof (the "Offer Conditions");
or
3
- Amend any term of the Offer in any manner adverse to holders of Shares
(including without limitation to result in any extension of the Offer
which would be inconsistent with the preceding provisions of this
sentence).
Notwithstanding the foregoing, subject to applicable legal requirements,
Xxxxxx'x may, in its sole discretion, cause Purchaser to waive any Offer
Condition other than the Minimum Condition and the Offer may be extended in
connection with an increase in the consideration to be paid pursuant to the
Offer so as to comply with applicable rules and regulations of the Commission.
Assuming the prior satisfaction or waiver of the Offer Conditions, Xxxxxx'x will
cause Purchaser to accept for payment, and pay for, in accordance with the terms
of the Offer, all Shares validly tendered and not withdrawn pursuant to the
Offer as soon as practicable after the Expiration Date.
Subject to the terms of the Merger Agreement and the rights of tendering
stockholders to withdraw their Shares, Purchaser will retain all tendered Shares
until the Expiration Date.
Subject to the applicable regulations of the Commission and the terms of the
Merger Agreement as described herein, Purchaser also expressly reserves the
right, in its sole discretion, at any time or from time to time, to:
- Delay acceptance for payment of or, regardless of whether such Shares were
theretofore accepted for payment, payment for, such Shares pending receipt
of any regulatory or governmental approvals specified in Section 15;
- Terminate the Offer (whether or not any Shares have theretofore been
accepted for payment) if any of the Offer Conditions have not been
satisfied by the Expiration Date or upon the occurrence of any event
specified in Section 14;
- Waive any Offer Condition (except, without the prior written consent of
Beringer, the Minimum Condition); or
- Except as set forth in the Merger Agreement, otherwise amend the Offer in
any respect, in each case, by giving oral or written notice of such
termination, waiver or amendment to the Depositary.
The rights reserved by Purchaser in the immediately preceding paragraph are
in addition to Purchaser's rights described in Section 14. Any extension,
termination or amendment of the Offer will be followed as promptly as
practicable by public announcement thereof, and such announcement in the case of
an extension will be made no later than 9:00 a.m., New York City time, on the
next business day after the previously scheduled Expiration Date. Without
limiting the manner in which Purchaser may choose to make any public
announcement, subject to applicable law (including Rules 14d-4(c) and 14d-6(d)
promulgated under the Exchange Act, which require that material changes be
promptly disseminated to holders of Shares), Purchaser will have no obligation
to publish, advertise or otherwise communicate any such public announcement
other than by issuing a release to the Dow Xxxxx News Service.
If Purchaser makes a material change in the terms of the Offer, or if it
waives a material condition to the Offer, Purchaser will extend the Offer and
disseminate additional tender offer materials to the extent required by Rules
14d-4(c), 14d-6(d) and 14e-1 promulgated under the Exchange Act. The minimum
period during which an offer must remain open following material changes in the
terms of the offer, other than a change in price or a change in percentage of
securities sought, will depend upon the facts and circumstances, including the
materiality of the changes. In the Commission's view, an offer should remain
open for a minimum of five business days from the date the material change is
first published, sent or given to stockholders, and, if material changes are
made with respect to information that approaches the significance of price and
the percentage of securities sought, a minimum of 10 business days may be
required to allow for adequate dissemination and investor
4
response. The requirement to extend the Offer will not apply to the extent that
the number of business days remaining between the occurrence of the change and
the then-scheduled Expiration Date equals or exceeds the minimum extension
period that would be required because of such amendment. For purposes of the
Offer, a "business day" means any day other than a Saturday, Sunday or a federal
holiday and consists of the time period from 12:01 a.m. through 12:00 midnight,
New York City time.
If Purchaser extends the Offer, is delayed in its purchase of or payment for
Shares (whether before or after its acceptance of Shares for payment) or is
unable to purchase or pay for Shares for any reason, then, without prejudice to
the rights of Purchaser under the Offer, the Depositary may retain tendered
Shares on behalf of Purchaser and such Shares may not be withdrawn, except to
the extent that tendering stockholders are entitled to withdrawal rights as set
forth in Section 4 of this Offer to Purchase. The ability of Purchaser to delay
the payment for Shares that Purchaser has accepted for payment is limited,
however, by Rule 14e-1(c) promulgated under the Exchange Act, which requires
that a bidder pay the consideration offered or return the Shares deposited by or
on behalf of stockholders promptly after the termination or withdrawal of such
bidder's offer, unless the bidder elects to offer a subsequent offering period
(a "Subsequent Offering Period") under Rule 14d-11 promulgated under the
Exchange Act and pays for Shares tendered in accordance with that rule.
Pursuant to Rule 14d-11 promulgated under the Exchange Act, Purchaser may,
subject to certain conditions, include a Subsequent Offering Period following
the expiration of the Offer on the Expiration Date. Rule 14d-11 provides that
Purchaser may include a Subsequent Offering Period so long as, among other
things:
- the Offer was open for at least 20 business days and has expired,
- the Offer is for all outstanding Shares,
- Purchaser accepts and promptly pays for all Shares tendered during the
Offer,
- Purchaser announces the results of the Offer, including the approximate
number and percentage of Shares tendered, no later than 9:00 a.m. New York
City time on the next business day after the Expiration Date and
immediately begins the Subsequent Offering Period,
- Purchaser immediately accepts and promptly pays for Shares as they are
tendered during the Subsequent Offering Period, and
- Purchaser pays the same form and amount of consideration for all Shares
tendered during the Subsequent Offering Period.
Purchaser will be able to include a Subsequent Offering Period if it
satisfies the conditions above, subject to certain limitations in the Merger
Agreement. In a public release, the Commission expressed the view that the
inclusion of a Subsequent Offering Period would constitute a material change to
the terms of an offer requiring Purchaser to disseminate new information to
stockholders in a manner reasonably calculated to inform them of such change
sufficiently in advance of the Expiration Date (generally five business days).
In the event Purchaser elects to include a Subsequent Offering Period, it will
notify stockholders consistent with the requirements of the Commission.
A Subsequent Offering Period, if one is included, is not an extension of the
Offer. A Subsequent Offering Period would be an additional period of time,
following the expiration of the Offer, in which stockholders may tender Shares
not tendered during the Offer. Purchaser does not currently intend to include a
Subsequent Offering Period in the Offer, although it reserves the right to do so
in its sole discretion.
Pursuant to Rule 14d-7 promulgated under the Exchange Act, no withdrawal
rights will apply to Shares tendered into a Subsequent Offering Period and no
withdrawal rights apply during the Subsequent Offering Period with respect to
Shares tendered in the Offer and accepted for payment,
5
including Shares tendered during the Subsequent Offering Period. The same
consideration, the applicable Per Share Amount, will be paid to stockholders
tendering Shares in the Offer or in a Subsequent Offering Period, if provided.
Beringer has provided Purchaser with its stockholder list and security
position listings for the purpose of disseminating the Offer to the Beringer
stockholders. This Offer to Purchase, the related Letter of Transmittal and
other relevant materials will be mailed to record holders of Shares and will be
furnished to brokers, dealers, commercial banks, trust companies and similar
persons whose names, or the names of whose nominees, appear on Xxxxxxxx'x
stockholder list or, if applicable, who are listed as participants in a clearing
agency's security position listing for subsequent transmittal to beneficial
owners of Shares.
2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended in accordance with the Merger Agreement, the terms
and conditions of any such extension or amendment), Purchaser will accept for
payment (and thereby purchase) and pay for Shares that are validly tendered and
not withdrawn prior to the Expiration Date, as soon as practicable after the
Expiration Date. Subject to the applicable rules of the Commission and the terms
of the Merger Agreement, Purchaser expressly reserves the right to delay
acceptance for payment of, or payment for, Shares in order to comply, in whole
or in part, with any other applicable law, government regulation or condition
contained therein. See Sections 1, 14 and 15.
In all cases, payment for Shares purchased pursuant to the Offer will be
made only after timely receipt by the Depositary of:
- Certificates for the Shares (or a timely Book-Entry Confirmation with
respect to the Shares);
- The Letter of Transmittal (or a manually signed facsimile thereof),
properly completed and duly executed with any required signature
guarantees (or, in the case of a book-entry transfer of Shares, an Agent's
Message); and
- All other documents required by the Letter of Transmittal. See Section 3.
The term "Agent's Message" means a message, transmitted by The Depository
Trust Company (the "Book-Entry Transfer Facility") to and received by the
Depositary and forming part of a Book-Entry Confirmation, which states that:
- The Book-Entry Transfer Facility has received an express acknowledgment
from the participant in the Book-Entry Transfer Facility tendering the
Shares that are the subject of such Book-Entry Confirmation;
- Such participant has received and agrees to be bound by the terms of the
applicable Letter of Transmittal; and
- Purchaser may enforce such agreement against such participant.
For purposes of the Offer, Purchaser will be deemed to have accepted for
payment (and thereby purchased) tendered Shares if, as and when Purchaser gives
oral or written notice to the Depositary of Purchaser's acceptance of such
Shares for payment. In all cases, payment for Shares purchased pursuant to the
Offer will be made by deposit of the purchase price with the Depositary, which
will act as agent for the tendering stockholders for the purpose of receiving
payment from Purchaser and transmitting payment to the tendering stockholders
whose Shares have been accepted for payment. If, for any reason, acceptance for
payment of any Shares tendered pursuant to the Offer is delayed, or Purchaser is
unable to accept for payment Shares tendered pursuant to the Offer, then,
without prejudice to Purchaser's rights described in Section 14, the Depositary
may, nevertheless, on behalf of
6
Purchaser, retain the tendered Shares, and such Shares may not be withdrawn,
except to the extent that the tendering stockholders are entitled to withdrawal
rights as described in Section 4 and as otherwise required by Rule 14e-1(c)
promulgated under the Exchange Act.
UNDER NO CIRCUMSTANCES WILL INTEREST ACCRUE ON THE CONSIDERATION TO BE PAID
FOR THE SHARES BY PURCHASER, REGARDLESS OF ANY DELAY IN MAKING SUCH PAYMENT.
If any tendered Shares are not purchased for any reason or if certificates
are submitted for more Shares than are tendered, certificates for the Shares not
purchased or tendered will be returned pursuant to the instructions of the
tendering stockholder without expense to the tendering stockholder (or, in the
case of Shares delivered by book-entry transfer into the Depositary's account at
a Book-Entry Transfer Facility pursuant to the procedures set forth in
Section 3, the Shares will be credited to an account maintained at the
appropriate Book-Entry Transfer Facility) as promptly as practicable following
the expiration, termination or withdrawal of the Offer.
Purchaser reserves the right, subject to the provisions of the Merger
Agreement, to assign, in whole or from time to time in part, to one or more of
Xxxxxx'x subsidiaries or affiliates the right to purchase all or any portion of
the Shares tendered pursuant to the Offer, but no such assignment will relieve
Xxxxxx'x or Purchaser of their respective obligations under the Offer or
prejudice the rights of tendering stockholders to receive payment for Shares
validly tendered and accepted for payment pursuant to the Offer.
IF, PRIOR TO THE EXPIRATION DATE, PURCHASER INCREASES THE CONSIDERATION TO
BE PAID PER SHARE PURSUANT TO THE OFFER, PURCHASER WILL PAY THE INCREASED
CONSIDERATION FOR ALL SHARES PURCHASED PURSUANT TO THE OFFER, WHETHER OR NOT THE
SHARES WERE TENDERED PRIOR TO THE INCREASE IN CONSIDERATION.
3. PROCEDURE FOR TENDERING SHARES
VALID TENDERS. For Shares to be validly tendered pursuant to the Offer,
either:
- The appropriate Letter of Transmittal (or a manually signed facsimile
thereof), properly completed and duly executed, with any required
signature guarantees (or, in the case of a book-entry transfer of Shares,
an Agent's Message), and any other documents required by the Letter of
Transmittal, must be received by the Depositary at one of its addresses
set forth on the back cover of this Offer to Purchase prior to the
Expiration Date and either (a) certificates representing tendered Shares
must be received by the Depositary at any one of those addresses prior to
the Expiration Date or (b) the Shares must be delivered pursuant to the
procedures for book-entry transfer set forth below and a Book-Entry
Confirmation must be received by the Depositary prior to the Expiration
Date; or
- The tendering stockholder must comply with the guaranteed delivery
procedures set forth below.
If certificates for Shares are forwarded separately to the Depositary, a
properly completed and duly executed Letter of Transmittal (or manually signed
facsimile thereof) must accompany each such delivery. No alternative,
conditional or contingent tenders will be accepted.
THE METHOD OF DELIVERY OF CERTIFICATES FOR SHARES, THE LETTER OF TRANSMITTAL
AND ANY OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE TENDERING
STOCKHOLDER AND DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE
DEPOSITARY. IF DELIVERY IS MADE BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME
SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
BOOK-ENTRY TRANSFER. The Depositary will establish an account with respect
to the Shares at the Book-Entry Transfer Facility for purposes of the Offer
within two business days after the date of this Offer to Purchase. Any financial
institution that is a participant in the Book-Entry Transfer Facility system may
make book-entry delivery of Shares by causing the Book-Entry Transfer Facility
to transfer
7
the Shares into the Depositary's account at the Book-Entry Transfer Facility in
accordance with the Book-Entry Transfer Facility's procedures for such transfer.
Although delivery of the Shares may be effected through book-entry transfer into
the Depositary's account at the Book-Entry Transfer Facility, the Letter of
Transmittal (or a manually signed facsimile thereof), properly completed and
duly executed with any required signature guarantees, or an Agent's Message, and
any other required documents must, in any case, be transmitted to, and received
by, the Depositary at one of its addresses set forth on the back cover of this
Offer to Purchase prior to the Expiration Date, or the tendering stockholder
must comply with the guaranteed delivery procedures described below. The
confirmation of a book-entry transfer of Shares into the Depositary's account at
the Book-Entry Transfer Facility as described above is referred to as a
"Book-Entry Confirmation."
DELIVERY OF THE LETTER OF TRANSMITTAL OR OTHER DOCUMENTS TO THE BOOK-ENTRY
TRANSFER FACILITY DOES NOT CONSTITUTE DELIVERY OF THE LETTER OF TRANSMITTAL OR
SUCH OTHER DOCUMENTS TO THE DEPOSITARY.
SIGNATURE GUARANTEES. No signature guarantee is required on the Letter of
Transmittal if:
- the Letter of Transmittal is signed by the registered stockholder (which
term, for purposes of this section, includes any participant in the
Book-Entry Transfer Facility system whose name appears on a security
position listing as the owner of the Shares) of the Shares tendered
therewith and such registered stockholder has not completed either the box
entitled "Special Delivery Instructions" or the box entitled "Special
Payment Instructions" on the Letter of Transmittal; or
- such Shares are tendered for the account of a financial institution
(including most commercial banks, savings and loans associations and
brokerage houses) that is a participant in the Security Transfer Agent's
Medallion Program, the New York Stock Exchange Medallion Signature
Guarantee Program or the Stock Exchange Medallion Program (each an
"Eligible Institution").
In all other cases, all signatures on the Letter of Transmittal must be
guaranteed by an Eligible Institution. See Instruction 1 of the Letter of
Transmittal.
If the certificates representing Shares are registered in the name of a
person other than the signer of the Letter of Transmittal or if payment is to be
made or if certificates for Shares not tendered or not accepted for payment are
to be returned to a person other than the registered holder of the certificates
surrendered, then the tendered certificates representing Shares must be endorsed
or accompanied by appropriate stock powers, in each case signed exactly as the
name or names of the registered stockholder or owners appears on the
certificates, with the signatures on the certificates or stock powers guaranteed
by an Eligible Institution as described above and as provided in the Letter of
Transmittal. See Instructions 1 and 5 of the Letter of Transmittal.
GUARANTEED DELIVERY. If a stockholder wishes to tender Shares pursuant to
the Offer and the stockholder's certificates are not immediately available or
the procedures for book-entry transfer cannot be completed on a timely basis or
time will not permit all required documents to be received by the Depositary
prior to the Expiration Date, the Shares may nevertheless be tendered if all the
following guaranteed delivery procedures are complied with:
- The tender is made by or through an Eligible Institution;
- A properly completed and duly executed Notice of Guaranteed Delivery,
substantially in the form provided by Purchaser with this Offer to
Purchase, is received by the Depositary, as provided below, prior to the
Expiration Date; and
- The certificates for all tendered Shares in proper form for transfer or a
Book-Entry Confirmation with respect to all tendered Shares, together with
a properly completed and duly executed Letter of Transmittal (or a
manually signed facsimile thereof) and any required signature guarantees
(or, in the case of a book-entry transfer of Shares, an Agent's Message)
in
8
connection with a book-entry transfer of Shares, and any other documents
required by the Letter of Transmittal, are received by the Depositary
within three Nasdaq trading days after the date of execution of the Notice
of Guaranteed Delivery. A "Nasdaq trading day" is any day on which the
Nasdaq Stock Market, Inc.'s ("Nasdaq") Nasdaq National Market is open for
business.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted by
facsimile transmission or mailed to the Depositary and must include an
endorsement by an Eligible Institution in the form set forth in the Notice of
Guaranteed Delivery and a representation that the stockholder on whose behalf
the tender is being made is deemed to own the Shares being tendered within the
meaning of Rule 14e-4 promulgated under the Exchange Act.
Notwithstanding any other provision of this Offer to Purchase, payment for
Shares accepted for payment pursuant to the Offer in all cases will be made only
after timely receipt by the Depositary of certificates for (or Book-Entry
Confirmation with respect to) the Shares, a Letter of Transmittal (or a manually
signed facsimile thereof), properly completed and duly executed with all
required signature guarantees (or, in the case of a book-entry transfer, an
Agent's Message) and all other documents required by the Letter of Transmittal.
Accordingly, payment may not be made to all tendering stockholders at the same
time, and will depend upon when Share certificates are received by the
Depositary or Book-Entry Confirmations of such Shares are received into the
Depositary's account at the Book-Entry Transfer Facility.
BACKUP FEDERAL INCOME TAX WITHHOLDING. TO PREVENT BACKUP FEDERAL INCOME TAX
WITHHOLDING OF 31% OF THE PAYMENTS MADE TO STOCKHOLDERS WITH RESPECT TO THE
PURCHASE PRICE OF SHARES PURCHASED PURSUANT TO THE OFFER OR THE MERGER, EACH
STOCKHOLDER MUST PROVIDE THE DEPOSITARY WITH ITS CORRECT TAXPAYER IDENTIFICATION
NUMBER AND CERTIFY THAT IT IS NOT SUBJECT TO BACKUP FEDERAL INCOME TAX
WITHHOLDING BY COMPLETING THE SUBSTITUTE FORM W-9 INCLUDED IN THE LETTER OF
TRANSMITTAL. SEE SECTION 5 BELOW AND INSTRUCTION 10 OF THE LETTER OF
TRANSMITTAL.
DETERMINATION OF VALIDITY. All questions as to the form of documents and
the validity, eligibility (including time of receipt) and acceptance for payment
of any tender of Shares pursuant to any of the procedures described above will
be determined by Purchaser in its sole discretion, which determination will be
final and binding on all parties. Purchaser reserves the absolute right to
reject any or all tenders of Shares determined not to be in proper form or the
acceptance of or payment for which may, in the opinion of counsel, be unlawful
and reserves the absolute right to waive any defect or irregularity in any
tender of Shares. Subject to the terms of the Merger Agreement, Purchaser also
reserves the absolute right to waive or amend any or all of the Offer
Conditions, other than the Minimum Condition, which cannot be waived without the
prior written consent of Beringer.
Purchaser's interpretation of the terms and conditions of the Offer
(including the Letter(s) of Transmittal and the instructions thereto) will be
final and binding on all parties. No tender of Shares will be deemed to have
been validly made until all defects and irregularities have been cured or
waived. None of Purchaser, Xxxxxx'x, the Depositary, the Dealer Manager, the
Information Agent or any other person will be under any duty to give
notification of any defects or irregularities in tenders or incur any liability
for failure to give any such notification.
APPOINTMENT AS PROXY. By executing the Letter of Transmittal, a tendering
stockholder irrevocably appoints designees of Purchaser as such stockholder's
attorneys-in-fact and proxies, with full power of substitution and
resubstitution, in the manner set forth in the Letter of Transmittal, to the
full extent of the stockholder's rights with respect to the Shares tendered by
the stockholder and purchased by Purchaser and with respect to any and all other
Shares or other securities issued or issuable in respect of those Shares, on or
after the date of the Offer. All such powers of attorney and proxies will be
considered coupled with an interest in the tendered Shares. Such appointment
will be effective when,
9
and only to the extent that, Xxxxxxxxx accepts the Shares for payment. Upon
acceptance for payment, all prior powers of attorney and proxies given by the
stockholder with respect to the Shares (and any other Shares or other securities
issued in respect of such purchased Shares) will be revoked, without further
action, and no subsequent powers of attorney and proxies may be given (and, if
given, will not be deemed effective) by the stockholder. The designees of
Purchaser will be empowered to exercise all voting and other rights of the
stockholder with respect to such Shares (and any other Shares or securities
issued in respect of such purchased Shares) as they in their sole discretion may
deem proper, including without limitation in respect of any annual or special
meeting of the stockholders, or any adjournment or postponement of any such
meeting.
Purchaser reserves the absolute right to require that, in order for Shares
to be validly tendered, immediately upon Purchaser's acceptance for payment of
the Shares, Purchaser must be able to exercise full voting and other rights with
respect to the Shares, including voting at any meeting of stockholders then
scheduled.
Purchaser's acceptance for payment of Shares tendered pursuant to any of the
procedures described above will constitute a binding agreement between the
tendering stockholder and Purchaser upon the terms and subject to the conditions
of the Offer.
4. WITHDRAWAL RIGHTS
Tenders of Shares made pursuant to the Offer are irrevocable, except as
otherwise provided in this Section 4. Shares tendered pursuant to the Offer may
be withdrawn at any time prior to the Expiration Date and, unless theretofore
accepted for payment by Purchaser as provided in this Offer to Purchase, may
also be withdrawn at any time after October 31, 2000 (or such later date as may
be applicable if the Offer is extended).
If Purchaser extends the Offer, is delayed in its purchase of or payment for
Shares (whether before or after its acceptance for payment of Shares), or is
unable to purchase or pay for Shares for any reason, then, without prejudice to
the rights of Purchaser under the Offer, the Depositary may retain tendered
Shares on behalf of Purchaser and such Shares may not be withdrawn, except to
the extent that tendering stockholders are entitled to withdrawal rights as set
forth in this Section 4.
The ability of Purchaser to delay the payment for Shares that Purchaser has
accepted for payment is subject to the terms of the Merger Agreement and
provisions of Rule 14e-1(c) promulgated under the Exchange Act, which requires
that Purchaser pay the consideration offered or return the Shares deposited by
or on behalf of stockholders promptly after the termination or withdrawal of the
Offer, unless Purchaser elects to offer a Subsequent Offering Period under Rule
14d-11 promulgated under the Exchange Act and pays for Shares tendered in
accordance with that rule. See Section 1.
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of this Offer to Purchase. Any
such notice of withdrawal must specify the name of the persons who tendered the
Shares to be withdrawn, the number of Shares to be withdrawn and the name of the
registered stockholder, if different from that of the person who tendered the
Shares. If certificates evidencing Shares (the "Certificates") have been
delivered or otherwise identified to the Depositary then, prior to the release
of the Certificates, the tendering stockholder must also submit the serial
numbers shown on the particular Certificates to be withdrawn, and the signature
on the notice of withdrawal must be guaranteed by an Eligible Institution
(except in the case of Shares tendered for the account of an Eligible
Institution). If Shares have been tendered pursuant to the procedure for book-
entry transfer set forth in Section 3, the notice of withdrawal must specify the
name and number of the account at the applicable Book-Entry Transfer Facility to
be credited with the withdrawn Shares.
10
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by Purchaser, in its sole discretion,
which determination will be final and binding on all parties. No withdrawal of
Shares will be deemed to have been properly made until all defects and
irregularities have been cured or waived. None of Xxxxxx'x, Purchaser, the
Dealer Manager, the Depositary, the Information Agent or any other person will
be under any duty to give notification of any defects or irregularities in any
notice of withdrawal or incur any liability for failing to give such
notification.
Any Shares properly withdrawn will be deemed not validly tendered for
purposes of the Offer, but may be tendered at any subsequent time prior to the
Expiration Date (or in a Subsequent Offering Period, if one is included) by
following any of the procedures described in Section 3 above.
No withdrawal rights will apply to Shares tendered during a Subsequent
Offering Period and no withdrawal rights apply during the Subsequent Offering
Period with respect to Shares tendered in the Offer and accepted for payment.
See Section 1.
5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE OFFER AND THE MERGER
The following is a summary of the material federal income tax consequences
of the Offer and the Merger to stockholders whose Shares are purchased pursuant
to the Offer or whose Shares are converted into the right to receive the Merger
Consideration in the Merger (including any cash amounts received by stockholders
pursuant to the exercise of appraisal rights). This discussion is based upon the
provisions of the Internal Revenue Code of 1986, as amended (the "Code"), the
applicable Treasury Regulations promulgated and proposed thereunder, and
published judicial authority and administrative rulings and practice.
Legislative, judicial or administrative authorities or interpretations are
subject to change, possibly on a retroactive basis, at any time and a change
could alter or modify the statements and conclusions set forth below. It is
assumed for purposes of this discussion that the Shares are held as "capital
assets" within the meaning of Section 1221 of the Code. This discussion does not
address all aspects of federal income taxation that may be relevant to a
particular stockholder in light of such stockholder's personal investment
circumstances, or to those stockholders subject to special treatment under the
federal income tax laws (for example, life insurance companies, tax-exempt
organizations, foreign corporations and nonresident alien individuals) or to
stockholders who acquired their Shares through the exercise of employee stock
options or other compensation arrangements. In addition, the discussion does not
address any aspect of foreign, state or local income taxation or any other form
of taxation that may be applicable to a stockholder.
CONSEQUENCES OF THE OFFER AND THE MERGER TO STOCKHOLDERS. The receipt of
the Per Share Amount and the Merger Consideration (and any cash amounts received
by stockholders pursuant to the exercise of appraisal rights) will be a taxable
transaction for federal income tax purposes (and also may be a taxable
transaction under applicable state, local and other income tax laws). In
general, for federal income tax purposes, a stockholder will recognize gain or
loss equal to the difference between its adjusted tax basis in the Shares sold
pursuant to the Offer or converted to cash in the Merger or pursuant to the
exercise of appraisal rights and the amount of cash received therefor. Such gain
or loss will be capital gain or loss and will be long-term gain or loss, if, on
the date of sale (or, if applicable, the date of the Merger), the Shares were
held for more than one year.
BACKUP TAX WITHHOLDING. Under the Code, a stockholder may be subject, under
certain circumstances, to "backup withholding" at a 31% rate with respect to
payments made in connection with the Offer or the Merger. Backup withholding
generally applies if the stockholder:
- Fails to furnish his or her social security number or other taxpayer
identification number ("TIN");
- Furnishes an incorrect TIN;
11
- Fails properly to report interest or dividends; or
- Under certain circumstances, fails to provide a certified statement,
signed under penalties of perjury, that the TIN provided is his or her
correct number and that he or she is not subject to backup withholding.
Backup withholding is not an additional tax but merely an advance payment, which
may be refunded to the extent it results in an overpayment of tax. Certain
persons generally are exempt from backup withholding, including corporations and
financial institutions.
Certain penalties apply for failure to furnish correct information and for
failure to include the reportable payments in income. Each stockholder should
consult with his or her own tax advisor as to his or her qualifications for
exemption from withholding and the procedure for obtaining such exemption.
THE FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL
INFORMATION PURPOSES ONLY. STOCKHOLDERS SHOULD CONSULT THEIR OWN TAX ADVISORS TO
DETERMINE THE FEDERAL, STATE, LOCAL AND FOREIGN TAX CONSEQUENCES OF THE OFFER
AND THE MERGER TO THEM IN VIEW OF THEIR OWN PARTICULAR CIRCUMSTANCES.
6. PRICE RANGE OF THE SHARES; DIVIDENDS ON THE SHARES
According to Xxxxxxxx'x Annual Report on Form 10-K for the fiscal year ended
June 30, 2000 (the "Beringer Form 10-K"), the Class B Shares are traded on the
Nasdaq National Market under the symbol "BERW." The Class A Shares are not
publicly traded but each Class A Share is convertible at any time into one Class
B Share at the option of the holder of the Class A Share. The following table
sets forth, for the periods indicated, the reported high and low sale prices for
the Class B Shares on the Nasdaq National Market as reported in the Beringer
Form 10-K.
HIGH LOW
-------- --------
Fiscal 2001
First Quarter (through August 31)........................... $55.31 $31.00
Fiscal 2000
Fourth Quarter.............................................. $39.38 $32.31
Third Quarter............................................... 47.72 32.94
Second Quarter.............................................. 41.75 34.25
First Quarter............................................... 43.00 35.63
Fiscal 1999
Fourth Quarter.............................................. $41.88 $36.00
Third Quarter............................................... 46.38 36.00
Second Quarter.............................................. 46.00 33.50
First Quarter............................................... 45.63 30.00
On August 25, 2000, the last full trading day before the public announcement
of the Merger Agreement, the last reported sale price on the Nasdaq National
Market was $43.50 per Class B Share. On August 31, 2000, the last full trading
day before the commencement of the Offer, the last reported sale price on the
Nasdaq National Market was $55.31 per Class B Share. Stockholders are urged to
obtain current market quotations for Class B Shares.
Beringer has agreed in the Merger Agreement that it will not pay any
dividend or other distribution payable in cash, stock or property with respect
to the Shares.
12
7. EFFECT OF THE OFFER ON THE MARKET FOR CLASS B SHARES; STOCK EXCHANGE LISTING
AND EXCHANGE ACT REGISTRATION; AND MARGIN SECURITIES.
Class A Shares are not currently listed or traded on any stock exchange and
are not registered under the Exchange Act. Class B Shares are currently listed
and traded on the Nasdaq National Market under the symbol "BERW" and are
registered under the Exchange Act.
The purchase of Shares pursuant to the Offer will reduce the number of Class
B Shares that might otherwise trade publicly and may reduce the number of
holders of Class B Shares, which could adversely affect the liquidity and market
value of the remaining Class B Shares held by stockholders other than Purchaser.
Purchaser cannot predict whether the reduction in the number of Class B Shares
that might otherwise trade publicly would have an adverse or beneficial effect
on the market price for or marketability of the Class B Shares or whether it
would cause future market prices to be greater or less than the Per Share
Amount.
NASDAQ QUOTATION. Depending upon the number of Class B Shares purchased
pursuant to the Offer, the Class B Shares may no longer meet the standards for
continued inclusion in the Nasdaq National Market. According to Nasdaq's
published guidelines, the Class B Shares would not be eligible to be included
for quotation if, among other things, the number of publicly held Class B Shares
falls below 500,000, the number of holders of Class B Shares falls below 400 or
the aggregate market value of such publicly held Class B Shares falls below
$3,000,000. If these standards are not met, the Class B Shares might continue to
be quoted on The Nasdaq SmallCap Market, Inc., but if the number of holders of
the Class B Shares falls below 300, or if the number of publicly held Class B
Shares falls below 100,000, or if the aggregate market value of such publicly
held Class B Shares falls below $200,000 or there are not at least two
registered and active market makers (one of which may be a market maker entering
a stability bid), Nasdaq rules provide that the securities would no longer
qualify for inclusion in Nasdaq and Nasdaq would cease to provide any
quotations. Class B Shares held directly or indirectly by an executive officer
or director of Beringer or by a beneficial owner of more than 10% of the Class B
Shares will ordinarily not be considered as being publicly held for purposes of
these standards. In the event the Class B Shares are no longer eligible for
Nasdaq quotation, quotations might still be available from other sources. The
extent of the public market for the Class B Shares and the availability of such
quotations would, however, depend upon the number of holders of such Class B
Shares remaining at such time, the interest in maintaining a market in such
Class B Shares on the part of securities firms, the possible termination of
registration of such Class B Shares under the Exchange Act as described below
and other factors.
Xxxxxxxxx has been advised by Beringer that as of June 30, 2000, there were
approximately 465 holders of record of the Class B Shares. Beringer has advised
Xxxxxxxxx that it believes that the number of beneficial owners of the Class B
Shares as of June 30, 2000, is in excess of 7,800.
EXCHANGE ACT REGISTRATION. The Class B Shares are currently registered
under the Exchange Act. Such registration may be terminated upon application of
Beringer to the Commission if the Class B Shares are not listed on a national
securities exchange and there are fewer than 300 record holders of the Class B
Shares. The termination of registration of the Class B Shares under the Exchange
Act would substantially reduce the information required to be furnished by
Beringer to holders of Class B Shares and to the Commission and would make
certain provisions of the Exchange Act, such as the short-swing profit recovery
provisions of Section 16(b), and the requirement of furnishing a proxy statement
in connection with stockholders' meetings pursuant to Section 14(a), no longer
applicable to the Class B Shares. Furthermore, if the Class B Shares are no
longer registered under the Exchange Act, the requirements of Rule 13e-3
promulgated under the Exchange Act with respect to "going private" transactions
would no longer be applicable to Beringer. In addition, "affiliates" of Beringer
and persons holding "restricted securities" of Beringer may be deprived of the
ability to dispose of such securities pursuant to Rule 144 promulgated under the
Securities Act of 1933, as amended. Purchaser
13
believes that the purchase of the Class B Shares pursuant to the Offer may
result in the Class B Shares becoming eligible for termination of registration
under the Exchange Act, and it is the intention of Purchaser to cause Beringer
to make an application for termination of registration of the Class B Shares as
soon as possible after successful completion of the Offer if the Class B Shares
are then eligible for such termination.
If registration of the Class B Shares is not terminated prior to the Merger,
then following the consummation of the Merger, the Class B Shares will no longer
be eligible for Nasdaq quotation and the registration of the Class B Shares
under the Exchange Act will be terminated.
MARGIN REGULATIONS. The Class B Shares are currently "margin securities,"
as such term is defined under the rules of the Board of Governors of the Federal
Reserve System (the "Federal Reserve Board"), which has the effect, among other
things, of allowing brokers to extend credit on the collateral of such
securities. Depending upon factors similar to those described above regarding
listing and market quotations, following the Offer, it is possible that the
Class B Shares might no longer constitute "margin securities" for purposes of
the margin regulations of the Federal Reserve Board, in which event such Class B
Shares could no longer be used as collateral for loans made by brokers.
If registration of the Class B Shares under the Exchange Act were
terminated, the Class B Shares would no longer be "margin securities" or be
eligible for Nasdaq reporting. Purchaser intends to seek to cause Beringer to
terminate the registration of the Class B Shares under the Exchange Act as soon
after consummation of the Offer as the requirements for termination of the
registration of the Class B Shares are met.
8. CERTAIN INFORMATION CONCERNING BERINGER
GENERAL INFORMATION. Beringer is a Delaware corporation with its principal
executive offices located at 000 Xxxxxxx Xxxx, X.X. Box 4500, Napa, California
94558, (000) 000-0000. The following description of Xxxxxxxx'x business has been
derived in part from the Beringer Form 10-K and is qualified in its entirety by
reference to the Beringer Form 10-X.
Xxxxxxxx is a leading producer of premium California varietal table wines.
These wines are marketed under the Xxxxxxxx Vineyards, Meridian Vineyards,
Chateau St. Xxxx, Chateau Souverain, Stags' Leap and St. Xxxxxxx brand names.
Beringer competes in each of the premium wine market categories. Xxxxxxxx'x
largest entry in the popular premium category is its Xxxxxxxx Vineyards White
Zinfandel product. Xxxxxxxx'x largest entries in the super-premium category are
its Meridian Vineyards brand and its new Beringer Founders Estates product line,
each of which sold over one million cases in fiscal 2000. Beringer is also
represented across each of its brands with high quality products in the
ultra-premium category.
CERTAIN PROSPECTIVE FINANCIAL INFORMATION. During the course of discussions
between Xxxxxx'x and Beringer that led to the execution of the Merger Agreement
(see Section 11 below), Beringer provided Xxxxxx'x with certain business and
financial information that was not publicly available, including certain
prospective financial information for the fiscal years 2000, 2001, 2002 and 2003
(the "Beringer Prospective Financial Information"). Set forth below is a summary
of this information other than for the fiscal year ended June 30, 2000, as the
actual results for that year have been announced by Beringer. The Beringer
Prospective Financial Information included estimates prepared solely for
Xxxxxxxx'x internal purposes. None of the Beringer Prospective Financial
Information provided by Beringer to Xxxxxx'x was prepared for publication or
with a view to complying with the published guidelines of the Commission
regarding projections or with the AICPA Guide for Prospective Financial
Statements, and such information is being included in this Offer to Purchase
solely because it was furnished to Xxxxxx'x in connection with the discussions
giving rise to the Merger Agreement. The independent accountants of Beringer,
PricewaterhouseCoopers LLP, have neither examined nor
14
compiled the Beringer Prospective Financial Information set forth below and,
accordingly, do not express an opinion or any other form of assurance with
respect thereto.
THE PROJECTED FINANCIAL INFORMATION SET FORTH BELOW NECESSARILY REFLECTS
NUMEROUS ASSUMPTIONS WITH RESPECT TO GENERAL BUSINESS AND ECONOMIC CONDITIONS
AND OTHER MATTERS, MANY OF WHICH ARE INHERENTLY UNCERTAIN AND BEYOND THE CONTROL
OF BERINGER OR XXXXXX'X, AND DOES NOT TAKE INTO ACCOUNT ANY CHANGE IN XXXXXXXX'X
OPERATIONS OR CAPITAL STRUCTURE WHICH MAY RESULT FROM THE OFFER AND THE MERGER.
IT IS NOT POSSIBLE TO PREDICT WHETHER THE ASSUMPTIONS MADE IN PREPARING THE
BERINGER PROSPECTIVE FINANCIAL INFORMATION WILL BE VALID AND ACTUAL RESULTS MAY
PROVE TO BE MATERIALLY HIGHER OR LOWER THAN THOSE CONTAINED IN THE PROJECTIONS.
NO SPECIFIC ASSUMPTIONS RELATING TO SUCH BERINGER PROSPECTIVE FINANCIAL
INFORMATION WERE FURNISHED BY BERINGER TO XXXXXX'X. THE INCLUSION OF THIS
INFORMATION SHOULD NOT BE REGARDED AS AN INDICATION THAT BERINGER, XXXXXX'X OR
ANYONE ELSE WHO RECEIVED THIS INFORMATION CONSIDERED IT A RELIABLE PREDICTOR OF
FUTURE EVENTS, AND THIS INFORMATION SHOULD NOT BE RELIED ON AS SUCH. NONE OF
XXXXXX'X, BERINGER OR ANY OF THEIR RESPECTIVE REPRESENTATIVES ASSUMES ANY
RESPONSIBILITY FOR THE VALIDITY, REASONABLENESS, ACCURACY OR COMPLETENESS OF THE
BERINGER PROSPECTIVE FINANCIAL INFORMATION, AND BERINGER HAS MADE NO
REPRESENTATIONS TO PURCHASER AND XXXXXX'X REGARDING SUCH INFORMATION.
2001 2002 2003
-------- -------- --------
(IN MILLIONS)
Net Revenue......................................... $507.9 $570.8 $641.1
Gross Profit........................................ 250.2 283.8 320.6
Total Operating Income.............................. 113.5 128.4 148.4
Net Income.......................................... 51.6 58.7 73.2
AVAILABLE INFORMATION. Beringer is subject to the informational filing
requirements of the Exchange Act. In accordance with the Exchange Act, Beringer
files periodic reports, proxy statements and other information with the
Commission relating to its business, financial condition and other matters.
Beringer is required to disclose in such proxy statements certain information,
as of particular dates, concerning Xxxxxxxx'x directors and officers, their
compensation, stock options granted to them, the principal holders of Xxxxxxxx'x
securities and any material interest of those persons in transactions with
Beringer. Such reports, proxy statements and other information may be inspected
at the Commission's office at 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000,
and also should be available for inspection and copying at the regional offices
of the Commission located at Citicorp Center, 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000 and 7 World Trade Center, Suite 0000, Xxx Xxxx,
Xxx Xxxx 00000. Copies may be obtained upon payment of the Commission's
prescribed fees by writing to its principal office at 000 Xxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000, or through the Commission's website
(xxxx://xxx.xxx.xxx).
Although neither Xxxxxx'x nor Purchaser believes, as of the date of the
Offer to Purchase, that statements contained herein based upon such documents
are untrue in any material respect, none of Xxxxxx'x, Purchaser, the Dealer
Manager or the Information Agent assumes any responsibility for the accuracy or
completeness of the information concerning Beringer, furnished by Beringer, or
contained in the documents and records referred to herein or for any failure by
Beringer to disclose events which may have occurred or may affect the
significance or accuracy of any such information but which are unknown to
Xxxxxx'x and Purchaser.
9. CERTAIN INFORMATION CONCERNING PURCHASER AND XXXXXX'X
GENERAL INFORMATION. Purchaser was organized to acquire all of the Shares
pursuant to the Offer and the Merger and has not conducted any unrelated
activities since its organization. All of the outstanding capital stock of
Purchaser is owned by an indirect, wholly owned subsidiary of Xxxxxx'x. The
principal executive offices of Xxxxxx'x and Purchaser are located at 00
Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxx Xxxxxxxxx 0000, 011-61-3-9633-2000.
15
Xxxxxx'x is a leading premium global beverage company dedicated to producing
and marketing quality beer, wine and leisure products to millions of consumers
across the world. Xxxxxx'x makes and markets many of Australia's most famous
beers, including Xxxxxx'x Lager and Xxxxxxxx Xxxxxx. Mildara Blass is the
existing wine business of Xxxxxx'x and the leading premium wine producer in
Australia. Mildara Blass' wine brands are some of Australia's best-known labels,
including Wolf Blass, Black Opal, Xxxx Xxxxxx Estate, Yellowglen and Xxxxxxxx'x
Run. Mildara Blass premium wines are sold in more than 65 markets around the
world and its winemakers are recognized as being among the best in the world.
The name, business address, citizenship, present principal occupation and
employment history for the past five years of each of the executive officers and
directors of Xxxxxx'x and Purchaser are set forth on Schedule I.
AVAILABLE INFORMATION. Neither Xxxxxx'x nor Purchaser is subject to the
informational filing requirements of the Exchange Act and, therefore, reports
relating to each of its business, financial condition and other matters have not
been filed with, and will not be available from, the Commission. Xxxxxx'x
securities are publicly traded on the Australian Stock Exchange under the
trading symbol "XXX.XX". Publicly available information about Xxxxxx'x can be
obtained free of charge from the Xxxxxx'x website at xxxx://xxx.xxxxxxx.xxx.xx.
The information contained on this website is not a part of this Offer to
Purchase.
Except as set forth elsewhere in this Offer to Purchase or Schedule I
hereto:
- Xxxxxxx Xxxxxx'x nor Purchaser nor, to the knowledge of Xxxxxx'x or
Purchaser, any of the persons listed in Schedule I hereto or any associate
or majority-owned subsidiary of Xxxxxx'x or Purchaser or any of the
persons so listed:
- beneficially owns or has a right to acquire any Shares or any other
equity securities of Beringer, or
- has any agreement, arrangement, or understanding with any other person
with respect to any securities of Beringer (including any agreement,
arrangement or understanding concerning the transfer or the voting of
any such securities, joint ventures, loan or option arrangements, puts
or calls, guarantees of loans, guarantees against loss or the giving or
withholding of proxies, consents or authorizations).
- There have been no transactions that would require reporting under the
rules and regulations of the Commission between Xxxxxx'x or Purchaser or
any of their respective subsidiaries or, to the knowledge of Xxxxxx'x or
Purchaser, any of the persons listed in Schedule I hereto, on the one
hand, and Beringer or any of its executive officers, directors or
affiliates, on the other hand.
- There have been no material contacts, negotiations or transactions between
Xxxxxx'x or Purchaser or any of their respective subsidiaries or, to the
knowledge of Xxxxxx'x or Purchaser, any of the persons listed in Schedule
I hereto, on the one hand, and Beringer or its subsidiaries or affiliates,
on the other hand, concerning a merger, consolidation, acquisition, a
tender offer or other acquisition of securities, an election of directors
or a sale or other transfer of a material amount of assets.
10. SOURCE AND AMOUNT OF FUNDS
The total amount of funds required by Purchaser to pay the aggregate
purchase price to be paid pursuant to the Offer and the Merger, to cash out the
Options and to pay the fees and expenses related to the Offer and the Merger is
estimated to be approximately $1.25 billion. Of this amount, approximately $1.16
billion will be used to purchase the Shares. These funds are expected to be
provided to Purchaser in the form of capital contributions from Xxxxxx'x and
intercompany loans.
16
Xxxxxx'x will obtain these funds through a combination of an equity offering, a
subordinated exchangeable bond offering and bank financings.
A portion of the funds to purchase the Shares in the Offer and the Merger
and to pay related expenses will be provided through intercompany loans to
Purchaser through borrowings under Xxxxxx'x existing bank credit facilities. The
sources of these intercompany loans are as follows:
- Bridging Facility Agreement dated August 29, 2000 (the "Bridging
Facility"), among Xxxxxx'x Brewing Group Limited, FBG Treasury (USA) Inc.,
National Australia Bank Limited, Westpac Banking Corporation, Commonwealth
Bank of Australia, Australia and New Zealand Banking Group Limited, UBS AG
Stamford Branch, and National Australia Bank Limited, as agent for the
lenders;
- Loan Agreement dated August 29, 2000 (the "UBS Facility"), among Treasury
USA, Xxxxxx'x Brewing Group Limited, and UBS AG, Stamford Branch;
- Facility Agreement dated May 8, 1996, as amended (the "Bank of America
Facility"), among FBG Treasury (Europe) B.V., Treasury USA, FBG Treasury
(UK) PLC, FBG Treasury (Aust.) Limited, FBG Canadian Treasury, Inc.,
Xxxxxx'x Brewing Group Limited, Bank of America National Association, BA
Australia Limited, Bank of America Canada, and Bank of America National
Association, Amsterdam Branch;
- Facility Agreement dated May 10, 1991, as amended (the "Commonwealth
Facility"), among FBG Treasury (Aust.) Limited, FBG Treasury (UK) PLC, FBG
Treasury (Europe) B.V., FBG Treasury (NZ) Limited, Treasury USA, Xxxxxx'x
Brewing Group Limited, and Commonwealth Bank of Australia;
- Facility Agreement, dated February 27, 1991, as amended (the "NAB/BNZ
Facility"), among Xxxxxx'x Brewing Group Limited, FBG Treasury (Aust.)
Limited, FBG Treasury (UK) PLC, FBG Treasury (Europe) B.V., FBG Treasury
(NZ) Limited, Treasury USA, National Australia Bank Limited, and Bank of
New Zealand;
- Facility Agreement dated March 21, 1991, as amended (the "Westpac
Facility"), among Xxxxxx'x Brewing Group Limited, FBG Treasury (Aust.)
Limited, FBG Treasury (UK) PLC, FBG Treasury (NZ) Limited, Treasury USA
and Westpac Banking Corporation; and
- A Multi-Option Facility dated August 28, 2000, among Xxxxxx'x Brewing
Group Limited and its subsidiaries, Australia and New Zealand Banking
Group Limited and ANZ Banking Group (New Zealand) Limited (the "ANZ
Facility").
The credit facilities described above are referred to herein collectively as
the "Credit Facilities." Each of the Credit Facilities is an unsecured
obligation of Xxxxxx'x or its subsidiaries.
The obligations of the lenders under each of the Credit Facilities are
subject to, among others, the following conditions: (i) confirmation by Standard
and Poors that the credit rating assigned by it to the long term unsecured and
unsubordinated debt of Xxxxxx'x remains at BBB+ or better and (ii) receipt by
Purchaser of acceptances for more than 50% of the voting shares of Beringer.
17
Certain terms of the Credit Facilities are shown in the chart below.
AMOUNT OF
COMMITMENT TYPE OF FACILITY INTEREST RATE MATURITY
--------------- ------------------------ ---------------- ------------------
Bridging Facility........ US$810,000,000 Line of Credit LIBOR plus .35% August 28, 2001
UBS Facility............. US$125,000,000 Revolving Line of Credit LIBOR plus .40% September 30, 2005
Bank of America CDN$147,000,000 Revolving Line of Credit LIBOR plus .40% August 31, 2002
Facility...............
Commonwealth Facility.... A$225,000,000 Revolving Line of Credit LIBOR plus .375% November 30, 2004
NAB/BNZ Facility......... A$500,000,000 Revolving Line of Credit LIBOR plus .375% September 30, 2005
Westpac Facility......... A$250,000,000 Revolving Line of Credit LIBOR plus .35% September 30, 2005
ANZ Facility............. A$250,000,000 Revolving Line of Credit LIBOR plus .30% March 1, 2005
The Credit Facilities are entitled to the benefit of the covenants and other
provisions of the FBG Group Financing Trust Deed dated February 21, 1993, as
amended, among Xxxxxx'x Brewing Group Limited, FBG Treasury (Aust.) Limited, FBG
Treasury (U.K.) plc, FBG Canadian Treasury, Inc., Treasury USA, FBG Treasury
Europe B.V., and National Mutual Trustees Limited (the "Financing Trust Deed").
The Financing Trust Deed contains, among other provisions, a negative pledge and
other customary affirmative and negative covenants and events of default.
On August 30, 2000, Xxxxxx'x announced an equity placement in Australia
which has been fully subscribed. This equity placement raised A$700 million
(approximately US$400 million), including A$200 million in oversubscriptions.
The equity placement is scheduled to close the first week of September 2000. On
August 30, 2000, Xxxxxx'x also placed $400 million of subordinated exchangeable
bonds which will be issued by a subsidiary of Xxxxxx'x and guaranteed by
Xxxxxx'x. The bonds were fully subscribed for, have a 4.75% coupon and are
exchangeable for Xxxxxx'x ordinary shares at an exchange price of A$5.00 per
share. The closing of the bond offering is expected to occur in early October
2000. If the purchase of the Shares occurs prior to the bond closing, Xxxxxx'x
intends to use funds available under the Bridging Facility to provide the
additional funds necessary to purchase the Shares in the Offer.
The closings of the equity and bond offerings are subject to customary
underwriting conditions, including (1) no material adverse change in the
business, financial condition, prospects or results of operations of Xxxxxx'x
and its principal subsidiaries taken as a whole, (2) the accuracy of the
representations and warranties made by Xxxxxx'x in the underwriting agreements,
(3) the delivery of certificates by Xxxxxx'x and legal opinions by legal counsel
to Xxxxxx'x, (4) no suspension or limitation of trading in securities generally
on the New York Stock Exchange, the London Stock Exchange, Nasdaq Stock Market
or the Australian Stock Market, (5) any banking moratorium declared by the
United States, Federal, New York, Australian or United Kingdom authorities or
any suspension of payments in respect of banks in the United States, (6) a
decline by 50% or more in any of the Dow Xxxxx Industrial Average, Standard &
Poor's 500 Index, Australian Stock Exchange Index or FTSE 100 Index, (7) any
commencement of war, armed hostilities or other international or national
calamity directly involving the United States, the United Kingdom, Australia,
Japan, Russia or China or having a material adverse effect on the functionality
of financial markets in the United States, United Kingdom or Australia, and
(8) in the case of any of the foregoing existing on the date of the underwriting
agreements for such offerings, a material acceleration or worsening thereof,
which in the reasonable opinion of the underwriter may prejudice materially the
applicable offering.
It is anticipated that the indebtedness incurred under the Credit Facilities
to finance the Offer and the Merger will be repaid from cash flow from
operations, the net proceeds from the bond offering and future refinancings of
the Credit Facilities.
18
11. BACKGROUND OF THE OFFER
For some period of time, Xxxxxx'x has pursued a strategy of expanding its
core beverage operations. In 1996, Xxxxxx'x acquired Mildara Blass Limited, one
of Australia's largest premium wine companies. Thereafter, Xxxxxx'x established
a goal of acquiring a significant United States wine business in order to
further expand its wine operations on a global basis.
On September 16, 1999, at the request of Xxx Xxxxxx, President and Chief
Executive Officer of Xxxxxx'x, Xxxxx Xxxxxxx, a principal of the Texas Pacific
Group and a member of the Beringer Board, met with Xx. Xxxxxx to discuss
possible strategic transactions between Xxxxxx'x and Beringer. Xx. Xxxxxx
informed Xx. Xxxxxxx that Xxxxxx'x was interested in expanding its wine
operations and wished to explore the possibility of acquiring or merging with
Beringer. Xx. Xxxxxxx informed Xx. Xxxxxx that although Beringer was not for
sale, he would discuss these possibilities with the other members of the
Beringer Board.
Meetings were held on December 2 and 3, 1999 between Xx. Xxxxxx, Xxxxx
Xxxxx, Managing Director of Mildara Blass Limited, Xxx Xxxxxx Xxxxx, Vice
President of Strategy of Xxxxxx'x, and
Xxxxxx Xxxxx, Xxxxxxxx'x Chairman and Chief Executive Officer, Xxxxx Xxxxx,
Xxxxxxxx'x Executive Vice President and Chief Financial and Administrative
Officer, Xxxxxxx Xxxxx, a principal of the Texas Pacific Group and a member of
the Beringer Board, and Xx. Xxxxxxx. At this meeting, the parties discussed the
operations and strategies of Xxxxxx'x and Beringer and a range of various
alternatives, including the possibility of a strategic alliance with Xxxxxx'x or
a merger in which Beringer shares would be exchanged for stock of Xxxxxx'x or a
subsidiary of Xxxxxx'x. No conclusions were reached at this meeting. Following
this meeting, Xxxxxx'x and Beringer signed a customary confidentiality
agreement.
During the period between the December meetings and July 2000, Xxxxxx'x and
UBS Warburg LLC, Xxxxxx'x financial adviser, considered various alternatives for
a possible transaction between Xxxxxx'x and Beringer, including financing of a
possible cash acquisition. During this period representatives Xxxxxx'x and
Beringer continued to discuss various structures for potential strategic
transactions.
On July 6, 2000, at the request of Xx. Xxxxxx, representatives of Xxxxxx'x
and Beringer renewed their preliminary discussions at a meeting held in San
Francisco, California. In attendance at that meeting were Xxxxx Xxxxxxxxx, a
principal of the Texas Pacific Group and a member of the Beringer Board, Xxxxx
Xxxxxx, Senior Vice President of Commercial Affairs of Xxxxxx'x, and
Messrs. Xxxxxxx, Xxxxx and Xxxxx. Xx. Xxxxxx informed Beringer and the Texas
Pacific Group that, subject to completion of its due diligence review of the
Company's operations and financial condition and conditioned on the retention of
Xxxxxxxx'x senior management, Xxxxxx'x was prepared to consider a cash offer in
the range of $52.00 per Share for Beringer. Xx. Xxxxxx indicated that Xxxxxx'x
might increase its offer if the acquisition were for a combination of cash and
Xxxxxx'x shares but that Xxxxxx'x would not participate in an auction process.
Xx. Xxxxxxxxx responded that the Texas Pacific Group did not view favorably the
inclusion of Xxxxxx'x shares as consideration and that the Texas Pacific Group
would not consider supporting any Xxxxxx'x offer to acquire Beringer unless it
offered cash in the range of $55.00 to $58.00 per Share. At the conclusion of
the meeting, the parties agreed that there was sufficient mutual interest to
warrant further discussions regarding a possible sale of Beringer to Xxxxxx'x.
On July 15 and 16, 2000, Xx. Xxxxx met with Xx. Xxxxx, Xx. Xxxxx and other
members of Xxxxxxxx'x senior management to further discuss Xxxxxxxx'x operations
and financial performance. At these meetings, Beringer provided Xxxxxx'x with
its internal estimates of Xxxxxxxx'x future financial performance for its fiscal
years ended June 30, 2000, 2001, 2002 and 2003.
During the month of August, 2000, Xxxxxx'x and its financial, legal and
accounting advisers conducted a due diligence review of Beringer, including
meetings with Xxxxxxxx'x management.
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On August 14, 2000, Messrs. Xxxxxx, Xxxxxx, Xxxxx, Xxxxxxxxx, Xxxxxxx, Xxxxx
and Xxxxx met again. At that meeting, the representatives of Xxxxxx'x stated
that they were prepared to recommend to the Xxxxxx'x Board that Xxxxxx'x offer
$55.00 per Share in cash provided that the Texas Pacific Group irrevocably
committed to the transaction and that the transaction terms would otherwise give
Xxxxxx'x certainty that the transaction would be completed. The Beringer
representatives indicated that they would communicate Xxxxxx'x proposal to the
Beringer Board the following day.
On August 15, 2000, Messrs. Xxxxxxxxx, Xxxxxxx and Xxxxx met with
Messrs. Xxxxxx, Xxxxxx and Xxxxx. Xx. Xxxxxxxxx indicated that Beringer and the
Texas Pacific Group would be prepared to consider a transaction in the range of
$57.00 per Share and on the other terms previously proposed by Beringer.
On August 16, 2000, Xx. Xxxxxxx met with Messrs. Xxxxxx and Xxxxx.
Mr. Xxxxxx reported that he and the other Xxxxxx'x representatives were prepared
to recommend to the Xxxxxx'x Board that Xxxxxx'x offer $55.75 per Share in cash
in a transaction containing customary provisions permitting termination
following receipt by Beringer of a superior proposal from a third party and a
termination fee, subject to completion of Xxxxxx'x due diligence review and
negotiation of satisfactory documentation. The proposal included a provision
under which the Texas Pacific Group, and members of the Beringer Board and
senior management would enter into an agreement with Xxxxxx'x to tender their
shares in the Offer unless Beringer terminated the merger agreement to accept a
superior proposal and a provision that the Texas Pacific Group would share its
proceeds in excess of $55.75 per Share from any such superior proposal with
Xxxxxx'x. Mr. Xxxxxx further indicated that Xxxxxx'x was interested in further
pursuing a transaction with Beringer only on an exclusive basis. Xx. Xxxxxxx
responded that he would communicate those terms to the Beringer Board.
On August 17, 2000, Beringer and Xxxxxx'x entered into an agreement,
providing that, for as long as Beringer and Xxxxxx'x were continuing good faith
negotiations of a potential transaction through August 28, 2000, Beringer and
its officers, directors and agents would not solicit or negotiate with respect
to an alternative acquisition of Beringer.
During the period between August 17, 2000 and August 28, 2000, Xxxxxx'x and
its financial, legal and accounting advisors continued their due diligence
review of Beringer and its operations and financial condition and the parties
and their legal advisers negotiated the terms of the transaction and the related
agreements. In addition, at the request of Xxxxxx'x, the parties discussed the
terms of employment arrangements with Xxxxxxxx'x senior executives. The terms of
these arrangements are described in Item 3 of Xxxxxxxx'x Schedule 14D-9 being
furnished to Stockholders simultaneously with this Offer to Purchase.
On August 28, 2000, Xxxxxx'x and Beringer publicly announced that each had
entered into a Merger Agreement and that the Texas Pacific Group and members of
the Beringer Board and its senior management had entered into the Tender
Agreement. The Offer was formally commenced on the date of this Offer to
Purchase.
For additional information regarding the background of the Offer, see "The
Solicitation or Recommendation--Item 4(b) Background; Reasons for the Company
Board's Recommendation" in Xxxxxxxx'x Schedule 14D-9 being furnished to
stockholders contemporaneously with this Offer to Purchase.
12. PURPOSE OF THE OFFER AND THE MERGER; PLANS FOR BERINGER; THE MERGER
AGREEMENT; OTHER MATTERS
PURPOSE OF THE OFFER AND THE MERGER. The purpose of the Offer and the
Merger is to enable Purchaser to acquire the entire equity interest in Beringer.
The Offer is intended to increase the likelihood that the Merger will be
completed promptly. The acquisition of the entire equity interest in Beringer
has been structured as a cash tender offer followed by a cash merger in order to
provide a
20
prompt and orderly transfer of ownership of Beringer from the current
stockholders to Xxxxxx'x and to provide Xxxxxxxx'x stockholders with cash in the
Per Share Amount for all of their Shares.
PLANS FOR BERINGER. Following consummation of the Merger, Xxxxxx'x intends
to operate Beringer as a separate business unit of Xxxxxx'x under the direction
of Xxxxxxxx'x existing senior management. Xxxxxx'x also intends to seek to use
Xxxxxxxx'x extensive U.S. distribution and marketing capabilities to further
expand the sales of wine produced by Xxxxxxx Xxxxx in the United States. At the
same time, Xxxxxx'x intends to seek to expand Xxxxxxxx'x export sales by using
Mildara Blass' existing distribution channels in Australia, Asia and Europe.
Xxxxxx'x future decisions regarding Beringer could be affected by information
hereafter obtained, changes in general economic or market conditions or the
business of Beringer and other factors.
Except as otherwise provided in this Offer to Purchase, Xxxxxx'x and the
directors and officers of Purchaser and Xxxxxx'x listed on Schedule I have no
current plans or proposals that would result in:
- An extraordinary corporate transaction, such as a merger, reorganization
or liquidation involving Beringer or any of its subsidiaries;
- A purchase, sale or transfer of a material amount of the assets of
Beringer or any of its subsidiaries;
- Any material change in the present dividend rate or policy, or
indebtedness or capitalization of Beringer;
- Any change in the present Beringer Board or management of Beringer,
including, but not limited to, any plans or proposals to change the number
or the term of directors or to fill any existing vacancies on the Beringer
Board or to change any material term of the employment contract of any
executive officer;
- Any other material change in Xxxxxxxx'x corporate structure or business;
- A class of equity securities of Beringer to be delisted from a national
securities exchange or to cease to be authorized to be quoted in an
interdealer quotation system of a registered national securities
association;
- A class of equity securities of Beringer becoming eligible for termination
of registration pursuant to Section 12(g)(4) of the Exchange Act;
- The suspension of Xxxxxxxx'x obligation to file reports under Section
15(d) of the Exchange Act;
- The acquisition by any person of additional Shares of Beringer, or the
disposition of Shares of Beringer; or
- Any changes in Xxxxxxxx'x charter, bylaws or other governing instruments
or other actions that could impede the acquisition of control of Beringer.
THE MERGER AGREEMENT. The following is a summary of the material terms of
the Merger Agreement and is qualified in its entirety by reference to the
complete text of the Merger Agreement, a copy of which is filed with the
Commission as an exhibit to the Schedule TO and is incorporated herein by
reference. The Merger Agreement should be read in its entirety for a more
complete description of the matters summarized below. The Merger Agreement may
be examined, and copies obtained from the offices of the Commission in the same
manner as set forth in Section 8 above. Defined terms used below and not defined
herein have the respective meanings assigned to those terms in the Merger
Agreement.
THE OFFER. The Merger Agreement contemplates the commencement of the Offer
to purchase all of the issued and outstanding Class A Shares and all of the
issued and outstanding Class B Shares for
21
the Per Share Amount, net to the seller in cash, without interest and prescribes
conditions to consummation of the Offer. The Merger Agreement provides that,
without the prior written consent of Beringer, Purchaser may not:
- Decrease or change the form of the Per Share Amount;
- Decrease the number of Shares sought to be purchased in the Offer;
- Amend or waive the Minimum Condition;
- Impose additional conditions to the Offer; or
- Amend any other term of the Offer in any manner adverse to the holders of
Shares.
The "Minimum Condition" requires that there shall have been validly tendered
and not withdrawn prior to the Expiration Date a number of Shares that, together
with any Shares that Purchaser has the right to acquire pursuant to the Tender
Agreement (excluding Shares subject to the Tender Agreement that have been
validly tendered and not withdrawn prior to the Expiration Date) and any Shares
then owned by Xxxxxx'x or any of its subsidiaries, constitutes at least a
majority of the total voting power of the outstanding securities of Beringer
entitled to vote in the election of directors or in a merger (the "Voting
Securities"), calculated on a fully diluted basis on the date of purchase ("on a
fully diluted basis" having the following meaning: as of any date, the number of
Voting Securities outstanding, together with the number of Voting Securities
Beringer is then required to issue pursuant to obligations outstanding at that
date under employee stock options, warrants, benefit plans or other rights to
purchase or acquire Voting Securities, assuming the absence of any vesting
requirements or conditions).
If, on the Expiration Date all conditions to the Offer shall not have been
satisfied or waived, Purchaser may (and at Xxxxxxxx'x request will) extend the
Expiration Date from time to time for such additional periods not to exceed 30
calendar days in order to permit such conditions to be satisfied; provided,
however, that the Expiration Date may not be extended beyond January 31, 2001.
Notwithstanding that all the conditions to the Offer have been satisfied,
Xxxxxx'x may, in its sole discretion, extend the Expiration Date for up to 10
business days. In the event that the Minimum Condition has been satisfied and
all other conditions to the Offer have been satisfied or waived but less than
100% of the Class A Shares and 90% of the Class B Shares, calculated on a fully
diluted basis, have been validly tendered and not withdrawn on the Expiration
Date, Purchaser will accept and purchase all of the Shares tendered in the
initial offer period and may notify stockholders of Purchaser's intent to
provide a Subsequent Offer Period which shall not exceed 10 business days.
Purchaser will, on the terms and subject to the prior satisfaction or waiver of
the conditions of the Offer, accept for payment and purchase all Shares validly
tendered and not withdrawn pursuant to the Offer as soon as permissible after
the Expiration Date of the Offer. Xxxxxx'x will cause Purchaser to have
sufficient funds make all payments required to be made pursuant to the Offer and
the Merger and Xxxxxx'x shall cause Purchaser to comply with all of its
obligations under the Merger Agreement.
The Company represented and warranted to Xxxxxx'x in the Merger Agreement
that:
- The Beringer Board, at a meeting duly called and held, unanimously (with
one Beringer Board member absent):
- Approved and adopted the Merger Agreement and approved the Tender
Agreement and the transactions contemplated thereby, including the
Offer and the Merger (such adoption and approval being sufficient to
render Section 203 of the Delaware General Corporation Law (the "DGCL")
inapplicable to the Merger Agreement and the Tender Agreement and the
transactions contemplated thereby, including the Offer and the Merger,
assuming that Xxxxxx'x and Purchaser are not "interested stockholders,"
as such term is defined in Section 203 of the DGCL, immediately prior
to the execution of the Merger Agreement and the Tender Agreement by
Xxxxxx'x and Purchaser);
22
- Recommended that the stockholders of Beringer accept the Offer, tender
their Shares pursuant to the Offer and adopt the Merger Agreement and
approve the transactions contemplated thereby, including the Merger;
and
- Determined that the Merger Agreement and the transactions contemplated
thereby, including the Offer and the Merger, are fair to and in the
best interests of the stockholders of Beringer, and
- Xxxxxxx, Xxxxx & Co., Xxxxxxxx'x financial advisor, rendered its opinion
to the Beringer Board to the effect that the consideration to be received
by the holders of Shares pursuant to the Offer and the Merger is fair to
such holders from a financial point of view.
The Merger Agreement provides that, if requested by Xxxxxx'x, following the
purchase by Purchaser of any Shares pursuant to the Offer and thereafter the
purchase of Shares pursuant to the Tender Agreement, and from time to time
thereafter as Shares are acquired by Purchaser, Xxxxxx'x is entitled to
designate such number of directors, rounded up to the next whole number, on the
Beringer Board as is equal to the product of the total number of directors on
the Beringer Board (determined after giving effect to the directors so appointed
or elected pursuant to such provision and including current directors serving as
officers of Beringer) multiplied by the percentage that the aggregate number of
Shares beneficially owned by Xxxxxx'x or its affiliates (including such Shares
as are accepted for payment pursuant to the Offer, but excluding Shares held by
Beringer) bears to the total number of Shares then outstanding. At such times,
if requested by Xxxxxx'x, Beringer will also cause each committee of the
Beringer Board to include persons designated by Xxxxxx'x constituting the same
percentage of each such committee as designees of Xxxxxx'x are of the Beringer
Board. The Company will, upon request by Xxxxxx'x, promptly increase the size of
the Beringer Board or use its best efforts to secure the resignations of such
number of directors as is necessary to enable designees of Xxxxxx'x to be
elected to the Beringer Board and shall cause designees of Xxxxxx'x to be
elected to the Beringer Board. In the event that designees of Xxxxxx'x are
appointed or elected to the Beringer Board, until the Effective Time, the
Beringer Board shall include at least three directors who were directors on the
date of the Merger Agreement and who are neither officers of Beringer nor
designees, stockholders, affiliates or associates of Xxxxxx'x (the "Independent
Directors"). If no Independent Directors remain, the other directors shall
designate three persons to fill the vacancies, none of whom shall be either an
officer of Beringer or a designee, stockholder, affiliate or associate of
Xxxxxx'x, and such persons shall be deemed to be Independent Directors for
purposes of the Merger Agreement. Prior to the Effective Time, the affirmative
vote of a majority of the Independent Directors is required to:
- amend or terminate the Merger Agreement on behalf of Beringer,
- exercise or waive any of Xxxxxxxx'x rights or remedies under the Merger
Agreement,
- extend the time for performance of Xxxxxx'x obligations under the Merger
Agreement, or
- take any other action by Beringer in connection with the Merger Agreement
required to be taken by the Beringer Board.
Pursuant to the Merger Agreement, until the Effective Time, the affirmative vote
of a majority of the Independent Directors is sufficient to cause Beringer to
enforce any of its rights and remedies under the Merger Agreement.
THE MERGER. The Merger Agreement provides that, at the Effective Time,
subject to the terms and conditions of the Merger Agreement and the DGCL,
Purchaser will be merged with and into Beringer. Following the Merger, the
separate corporate existence of Purchaser will cease and Beringer will continue
as the Surviving Corporation.
The Certificate of Incorporation of Purchaser, as in effect immediately
prior to the Effective Time, will be the Certificate of Incorporation of the
Surviving Corporation, until thereafter amended in
23
accordance with the provisions thereof and of the Merger Agreement and
applicable law, except that Article FIRST of the Certificate of Incorporation of
the Surviving Corporation shall be amended to read in its entirety as follows:
"The name of the corporation is Xxxxxxxx Wine Estates Holdings, Inc." The
By-Laws of Purchaser in effect at the time of the Effective Time will be the
By-Laws of the Surviving Corporation until amended, as provided by law, the
Certificate of Incorporation of the Surviving Corporation and such By-Laws.
The directors of Purchaser immediately prior to the Effective Time will be
the initial directors of the Surviving Corporation, and the officers of Beringer
immediately prior to the Effective Time will be the initial officers of the
Surviving Corporation, in each case until their successors are elected,
appointed and qualified or until their earlier death, resignation or removal in
accordance with the Certificate of Incorporation and By-laws of the Surviving
Corporation.
MERGER CONSIDERATION. At the Effective Time, by virtue of the Merger and
without any action on the part of Purchaser, Beringer or any holder of Shares,
each Share issued and outstanding immediately prior to the Effective Time (other
than Shares held in the treasury of Beringer or owned by Xxxxxx'x or any direct
or indirect, wholly owned subsidiary of Xxxxxx'x, which will be canceled and
retired immediately before the Effective Time, and any Dissenting Shares) will
be canceled and extinguished and will be converted into the right to receive the
Per Share Amount therefor in cash, without interest, upon surrender of the
certificate formerly representing such Share. At the Effective Time, each share
of common stock of Purchaser, par value $0.01 per share, issued and outstanding
immediately prior to the Effective Time will thereafter represent one validly
issued, fully paid and non-assessable share of common stock, par value $0.01 per
share, of the Surviving Corporation.
The Merger Agreement provides that Beringer will take all actions necessary
to provide that, upon consummation of the Merger, each then-outstanding Option
granted under any of Xxxxxxxx'x Option Plans will be canceled by Beringer in
exchange for payment to the holders of such Options of an amount equal to the
product of (A) the excess, if any, of the Per Share Amount over the per Share
exercise price thereof and (B) the number of Shares subject thereto (such
payment to be net of applicable withholding taxes). Any Options not canceled,
exercised or converted prior to the Effective Time will, by reason of the
Merger, thereafter represent the right to receive, upon payment of the exercise
price therefor, an amount in cash, without interest, equal to the Per Share
Amount times the number of Shares subject thereto (such payment to be net of
applicable withholding taxes).
The Company has agreed to take all actions necessary to provide that on and
after the date of the Merger Agreement, (A) no Shares will be purchased under
any Option Plan that is an "employee stock purchase plan" as defined in the Code
from and after the date of the Merger Agreement and (B) any amounts previously
contributed by employees (through payroll deduction or otherwise) for the
purpose of purchasing Shares under any such Option Plan (for which the Shares
have not been purchased as of the date of the Merger Agreement) will be returned
to such employees prior to the Effective Time. The Merger Agreement also
provides that (1) Beringer shall cause the Option Plans to terminate as of the
Effective Time and (2) Beringer shall ensure that, following the Effective Time,
no person, including any holder of any Options or any participant in the Option
Plans, will have any right to acquire any equity securities of Beringer, the
Surviving Corporation or any subsidiary thereof. Prior to the Effective Time, if
necessary, Beringer shall (1) obtain any consents from holders of Options and
(2) make any amendments to the terms of the Option Plans that Beringer deems
necessary to give effect to the actions described in this paragraph or the
preceding paragraph.
24
Beringer has agreed pursuant to the Merger Agreement that, if required by
applicable law in order to consummate the Merger, following the purchase of and
payment for Shares by Purchaser pursuant to the Offer, Beringer will:
- Promptly take all action necessary in accordance with the DGCL and its
Certificate of Incorporation and By-Laws to convene a special meeting of
its stockholders;
- Use its reasonable best efforts to solicit from stockholders proxies in
favor of the Merger, if necessary; and
- Take all other action necessary or, in the reasonable opinion of Xxxxxx'x,
advisable to secure any vote or consent of stockholders required by the
DGCL to effect the Merger.
Xxxxxx'x has agreed in the Merger Agreement that it will vote, or cause to
be voted, all of the Shares then directly or indirectly beneficially owned by it
in favor of the Merger.
The Merger Agreement further provides that, notwithstanding the foregoing,
if Xxxxxx'x, Purchaser or any other subsidiary of Xxxxxx'x acquires 100% of the
Class A Shares and at least 90% of the Class B Shares pursuant to the Offer or
otherwise, the parties to the Merger Agreement will take all necessary and
appropriate action to cause the Merger to become effective as soon as
practicable after the acceptance for payment of and payment for the Shares by
Purchaser pursuant to the Offer without a meeting of the stockholders of
Beringer, in accordance with Section 253 of the DGCL.
REPRESENTATIONS AND WARRANTIES OF XXXXXX'X AND PURCHASER. Pursuant to the
Merger Agreement, Xxxxxx'x and Purchaser have made representations and
warranties with respect to, among other things:
- corporate existence and power;
- corporate authorization;
- absence of conflicts and required filings and consents;
- absence of brokerage or finders fees or commissions payable;
- accuracy of documents filed with the Commission; and
- the ownership of Shares by Xxxxxx'x and Purchaser.
REPRESENTATIONS AND WARRANTIES OF BERINGER. Pursuant to the Merger
Agreement, Beringer has made representations and warranties with respect to,
among other things:
- corporate existence and power;
- capitalization;
- due authorization, execution and delivery;
- no conflicts;
- consents and approvals;
- the absence of required waivers, consents or approvals;
- Commission filings;
- financial statements;
- absence of a Beringer Material Adverse Effect;
- absence of litigation;
- employee benefit plans;
- accuracy and completeness of information supplied in connection with
governmental filing;
- absence of brokerage or finders fees;
- control share acquisition statute;
- compliance with laws;
- tax matters;
- permits;
- intellectual property;
- certain contractual obligations;
- certain environmental matters;
- required stockholders vote;
- the fairness opinion from Xxxxxxx, Xxxxx & Co.;
- transactions with affiliates; and
- title to property.
25
A "Beringer Material Adverse Effect" means any change, effect, event or
condition that has been or would be materially adverse to the business, assets,
properties (including intangible properties), condition (financial or
otherwise), results of operations or liabilities of Beringer and its
subsidiaries, taken as a whole, other than any adverse effect or change to the
extent it results from conditions generally affecting the wine industry or grape
growing areas in the United States.
CONDUCT OF BUSINESS PENDING THE MERGER. The Merger Agreement obligates
Beringer and its subsidiaries, from the date of the Merger Agreement until the
Effective Time, unless Xxxxxx'x otherwise consents in writing, to conduct their
operations only in the ordinary course of business in a manner consistent with
past practice and obligates Beringer and its subsidiaries to use their
commercially reasonable efforts to preserve substantially intact their business
organizations, to keep available the services of their present officers, key
employees and consultants and to preserve present relationships with customers,
suppliers and any other Persons with whom Beringer and any of its subsidiaries
has significant business relationships. The Merger Agreement also contains
specific covenants as to certain impermissible activities of Beringer prior to
the Effective Time, unless specifically disclosed in the schedules to the Merger
Agreement or otherwise consented to in writing by Xxxxxx'x, which provide that
Beringer will not (and will not permit any of its subsidiaries to):
- Adopt any amendment to its Certificate of Incorporation or By-Laws;
- Declare, set aside or pay any dividend or other distribution (whether in
cash, stock or property) in respect to its capital stock;
- Issue, sell, transfer, pledge, dispose of or encumber any additional
shares of, or securities convertible into or exchangeable for, or options,
warrants, calls, commitments or rights of any kind to acquire, any shares
of capital stock of any class of Beringer or any of its subsidiaries,
other than the issuance of Shares, in accordance with the terms of the
instruments governing such issuance on the date of the Merger Agreement,
and previously disclosed to Xxxxxx'x in writing;
- Incur any long-term indebtedness or incur short-term indebtedness other
than under lines of credit existing on the date of the Merger Agreement;
- Redeem, purchase, repurchase or otherwise acquire directly or indirectly
any of its capital stock or other securities;
- Split, combine or reclassify any of its capital stock or issue or
authorize or propose the issuance of any other securities in respect of,
in lieu of or in substitution for shares of its capital stock;
- Enter into, amend, terminate, renew or fail to use reasonable efforts to
renew in any material respect any material contract or certain specified
types of contracts except in the ordinary course of business consistent
with past practice;
- Except pursuant to employment contracts in effect as of the Merger
Agreement:
- Grant any increase in the compensation payable or to become payable by
Beringer or any of its subsidiaries to any employee other than
increases in the ordinary course of business consistent with past
practice to non-officer employees of Beringer;
- Adopt, enter into, amend or otherwise increase, or accelerate the
payment or vesting of the amounts, benefits or rights payable or
accrued or to become payable to or accrued under any bonus, incentive
compensation, deferred compensation, severance, termination, change in
control, retention, hospitalization or other medical, life, disability,
insurance or other welfare, profit sharing, stock option, stock
appreciation right, restricted stock or other equity based, pension,
retirement or other employee compensation or benefit plan, program,
agreement or arrangement; or
26
- Enter into or amend in any material respect any employment or
collective bargaining agreement or, except in accordance with the
existing written policies of Beringer or existing contracts or
agreements, grant any severance or termination pay to any officer,
director or employee of Beringer or any of its subsidiaries;
- Change the accounting principles used by it unless required by United
States generally accepted accounting principles (or, if applicable with
respect to subsidiaries, foreign generally accepted accounting
principles);
- Acquire by merging or consolidating with, by purchasing an equity interest
in or a portion of the assets of, or by any other manner, any business or
any corporation, partnership, association or other business organization
or division thereof, or otherwise acquire any assets of any other person
(other than the purchase of assets from suppliers or vendors in the
ordinary course of business consistent with past practice) for an amount
in excess of $500,000, individually or in the aggregate;
- Sell, lease, exchange, transfer or otherwise dispose of, or agree to sell,
lease, exchange, transfer or otherwise dispose of, any of its assets
except in the ordinary course of business consistent with past practice;
- Mortgage, pledge, hypothecate, grant any security interest in, or
otherwise subject to any other lien on any of its properties or assets
other than permitted liens that are not purchase money security interests
relating to indebtedness representing an amount no greater than the
purchase price of such properties;
- Compromise, settle, grant any waiver or release relating to or otherwise
adjust any material claims, liabilities or obligations (absolute, accrued,
asserted or unasserted, contingent or otherwise), including any
litigation, except for any such compromise, settlement, waiver, release or
adjustment:
- in the ordinary course of business consistent with past practice, and
- involving a payment by Beringer or any of its subsidiaries not in
excess of $500,000 in the aggregate, following prior notice to and
consultation with Xxxxxx'x;
- Incur any indebtedness for borrowed money or guarantee any such
indebtedness of another Person, issue or sell any debt securities or
warrants or other rights to acquire any debt securities of Beringer or any
of its subsidiaries, guarantee any debt securities of another Person,
enter into any "keep well" or other agreement to maintain any financial
statement condition of another Person or enter into any arrangement having
the economic effect of any of the foregoing;
- Make any loans, advances or capital contributions to, or investments in,
any other Person, other than to Beringer or any subsidiary of Beringer or
to officers and employees of Beringer or any of its subsidiaries for
travel, business or relocation expenses in the ordinary course of
business;
- Make any capital expenditure or capital expenditures other than capital
expenditures set forth in the operating budget of Beringer, dated August
15, 2000, and previously delivered to Xxxxxx'x, other than expenditures in
the ordinary course of business consistent with past practice which
individually or in the aggregate do not exceed $500,000;
- Hire or terminate or amend the terms of the employment of any executive
officer or other key employee;
- Enter into or amend in any material respect any material contract or enter
into any contract or agreement, written or oral, with any affiliate or
associate or relative of Beringer or relative of any officer or director
of Beringer, or make any payment to or for the benefit of, directly or
indirectly, any of the foregoing;
27
- Authorize, recommend, propose or announce an intention to adopt a plan of
complete or partial liquidation or dissolution of Beringer or any of its
subsidiaries; or
- Take any action including, without limitation, the adoption of any
stockholder rights plan or amendments to the Certificate of Incorporation,
which would, directly or indirectly, restrict or impair the ability of
Xxxxxx'x to vote, or otherwise to exercise the rights and receive the
benefits of a stockholder with respect to, securities of Beringer that may
be acquired or controlled by Xxxxxx'x or Purchaser or permit any
stockholder to acquire securities on a basis not available to Xxxxxx'x in
the event that Xxxxxx'x were to acquire securities of Beringer; and
- Enter into an agreement, contract, commitment or arrangement to do any of
the foregoing.
NO SHOP COVENANT. The Merger Agreement provides that Beringer and its
subsidiaries will not and will not permit or authorize any officer, director,
agent, financial adviser, attorney, accountant or other representative to,
directly or indirectly,
- solicit, initiate or encourage submission of proposals or offers from any
Person relating to, or that could reasonably be expected to lead to, an
Acquisition Transaction, or
- participate in any negotiations or discussions regarding an Acquisition
Transaction, or
- furnish to any other Person any information with respect to an Acquisition
Transaction, or
- otherwise cooperate in any way with an Acquisition Transaction, or
- facilitate any effort or attempt by any other Person to do or seek an
Acquisition Transaction, or
- enter into any letter of intent, agreement in principle, acquisition
agreement or other similar agreement with respect to an Acquisition
Transaction (an "Acquisition Agreement") or any agreement in principle,
acquisition agreement or other similar agreement requiring it to abandon,
terminate or fail to consummate the Offer, the Merger or any other
transaction contemplated by the Merger Agreement or to consummate an
Acquisition Transaction.
However, subject to compliance with its covenant (described below) to notify
Xxxxxx'x in advance and keep Xxxxxx'x informed, prior to the acceptance for
payment of Shares by Purchaser pursuant to the Offer, Beringer may furnish
information to such third party pursuant to a customary confidentiality
agreement and Beringer may negotiate, explore or otherwise engage in substantive
discussions with such party,
- in response to a bona fide unsolicited proposal with respect to an
Acquisition Transaction that was made in circumstances not otherwise
involving a breach of the Merger Agreement and that the Beringer Board
determines, in its good faith judgment taking into account the advice of
its financial advisor and outside counsel, is or is reasonably likely to
lead to a Superior Proposal, and
- if the Beringer Board determines, in its good faith judgment, taking into
account the advice of outside legal counsel, that failing to take such
action would breach the fiduciary duties of the Beringer Board to the
stockholders under applicable law.
Nothing in the Merger Agreement will prevent the Beringer Board from complying
with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to
any Acquisition Transaction or from making any required disclosure to Xxxxxxxx'x
stockholders if, in the good faith judgment of the Beringer Board, taking into
account the advice of outside counsel, such disclosure would be required under
applicable laws.
28
The Merger Agreement provides that neither the Beringer Board nor any committee
thereof may:
- withdraw or modify, or propose publicly to withdraw or modify, in a manner
adverse to Xxxxxx'x or Purchaser, the approval or recommendation by the
Beringer Board or such committee of the Offer, the Merger, the Merger
Agreement or the Tender Agreement,
- approve or recommend, or propose publicly to approve or recommend, any
Acquisition Transaction, including for purposes of Section 203 of the
DGCL, or
- cause Beringer to enter into any Acquisition Agreement.
However, notwithstanding anything in the Merger Agreement to the contrary,
subject to compliance by Beringer with its covenant to give Xxxxxx'x notice and
keep Xxxxxx'x informed, prior to acceptance for payment of Shares by Purchaser
pursuant to the Offer, in response to a bona fide unsolicited proposal with
respect to an Acquisition Transaction, if the Beringer Board:
- determines, in its good faith judgment and taking into account the advice
of its financial advisor and outside counsel, that
- such proposal is a Superior Proposal, and
- failure to take any of the actions set forth in the three bullet points
immediately preceding this paragraph would breach the fiduciary duties
of the Beringer Board under applicable law, and
- gives Xxxxxx'x four business days prior written notice of its intention to
do so,
the Beringer Board may withdraw or modify its approval or recommendation of the
Offer, the Merger or the Merger Agreement or approve or recommend an Acquisition
Transaction or cause Beringer to enter into an Acquisition Agreement. Xxxxxx'x,
however, will retain its right to terminate the Merger Agreement (see
"Termination") and Beringer may not enter into an Acquisition Agreement unless
it terminates the Merger Agreement and pays a termination fee to Xxxxxx'x.
The Merger Agreement required Beringer to immediately cease all existing
activities, discussions and negotiations with any parties conducted prior to the
execution of the Merger Agreement with respect to any proposal for an
Acquisition Transaction and request the return of all confidential information
regarding Beringer provided to any such parties prior to the execution of the
Merger Agreement pursuant to the terms of any confidentiality agreement or
otherwise.
Pursuant to the terms of the Merger Agreement, Beringer will:
- immediately (and in any event, no later than one business day after
receipt) advise Xxxxxx'x in writing of the receipt of a request for
information or any inquiries or proposals relating to an Acquisition
Transaction and any actions taken pursuant to the No Shop covenant,
specifying the material terms and conditions of such proposed Acquisition
Transaction and the identity of the other party or parties involved; and
- keep Xxxxxx'x reasonably informed of the status of any such request or
proposed Acquisition Transaction.
If any such inquiry or proposal is in writing, Beringer shall promptly
deliver to Xxxxxx'x a copy of such inquiry or proposal. In addition, Beringer
shall promptly (but in no event later than one business day) advise Xxxxxx'x in
writing if the Beringer Board makes any determination as to any Acquisition
Transaction as contemplated by the provisos described above.
For purposes of the Merger Agreement:
- "Acquisition Transaction" means (other than the transactions contemplated
by the Merger Agreement):
29
- A merger, consolidation or other business combination,
recapitalization, liquidation, share exchange, sale of shares of
capital stock, tender offer or exchange offer or similar transaction
involving Beringer or any of its subsidiaries;
- Acquisition in any manner, directly or indirectly, of a 30% or greater
interest in the outstanding voting securities of, or a material equity
interest in a substantial portion of the assets of, Beringer or any of
its subsidiaries, including any single or multi-step transaction or
series of related transactions which is structured to permit a third
party to acquire beneficial ownership of 30% or greater equity interest
in Beringer;
- The acquisition in any manner, directly or indirectly, of any material
portion of the business or assets (other than immaterial or
insubstantial assets or inventory in the ordinary course of business or
assets held for sale) of Beringer; or
- Any other transaction that is intended or would be reasonably likely to
frustrate the completion of the transactions contemplated by the Merger
Agreement.
- "Superior Proposal" means a bona fide unsolicited written Acquisition
Transaction proposal by a third party involving all or substantially all
of the shares of capital stock or substantially all of the assets of
Beringer and payment of consideration to Beringer or the stockholders of
Beringer that a majority of the disinterested members of the Beringer
Board determines, to be, taking into account the transaction as a whole
and all pertinent factors including the availability of financing, any
changes to the financial terms of the Merger Agreement which as of the
time of determination had been proposed by Xxxxxx'x, any break-up fees,
expense reimbursement provisions and conditions to consummation, more
favorable to the stockholders of Beringer from a financial point of view
than the Offer, the Merger and the other transactions contemplated by the
Merger Agreement.
ACCESS TO INFORMATION/CONFIDENTIALITY. The Merger Agreement provides that,
from the date of the Merger Agreement until the Effective Time, Beringer will
give Xxxxxx'x and its representatives reasonable access, at all reasonable
times, to its officers, employees, agents, properties, offices and other
facilities and to the books and records of Beringer and its subsidiaries and all
financial, operating and other data and information reasonably requested by
Xxxxxx'x or Purchaser, subject to the maintenance by Xxxxxx'x of the
confidentiality of any non-public information disclosed to them. The parties
also agree to keep each other's confidential information confidential, subject
to customary exceptions.
EFFORTS TO CONSUMMATE. The parties have agreed to use their reasonable best
efforts to take or cause to be taken all actions and to do or cause to be done
all things necessary, proper or advisable to consummate the transactions
contemplated by the Merger Agreement and to use their reasonable best efforts to
obtain all necessary waivers, consents and approvals, and to effect all
necessary filings under the Exchange Act, the Australian Stock Exchange Listing
Rules, the rules promulgated by the Australian Securities and Investments
Commission and statutes, rules, regulations, orders, decrees, administrative and
judicial doctrines, and other laws that are designed or intended to prohibit,
restrict or regulate actions having the purpose or effect of monopolization,
lessening of competition or restraint of trade, including, to the extent
applicable, the HSR Act, laws of the European Union or the member states
thereof, Australia and any other country in which Beringer, its subsidiaries,
Xxxxxx'x or its subsidiaries has operations or derives revenue which are
equivalent to the HSR Act. The parties also agreed to cooperate in responding to
inquiries from, and making presentations to, regulatory authorities.
Notwithstanding any other provision of the Merger Agreement, in no event will
Xxxxxx'x be required to agree to any divestiture, hold separate or other
requirement in connection with the Merger Agreement or any of the transactions
contemplated thereby.
30
INDEMNIFICATION; DIRECTORS' AND OFFICERS' INSURANCE. The Merger Agreement
provides that the Certificate of Incorporation and By-Laws of the Surviving
Corporation shall contain indemnification provisions identical to those
contained in the Certificate of Incorporation and By-Laws of Beringer provided
to Xxxxxx'x prior to the execution of the Merger Agreement and shall not be
amended, repealed or otherwise modified for a period of six years after the
Effective Time in any manner that would adversely affect the rights thereunder
of the indemnified parties specified in the Merger Agreement (each an
"Indemnified Party"). Xxxxxx'x has agreed that from and after the Effective Date
it will cause the Surviving Corporation, to the fullest extent permitted under
the DGCL, to indemnify, defend and hold harmless, each Indemnified Party against
any costs or expenses (including reasonable attorneys' fees), judgments, fines,
losses, claims, damages, liabilities and amounts paid in settlement in
connection with any claim, action, suit, proceeding or investigation, including,
without limitation, liabilities arising out of the Merger Agreement, the Tender
Agreement and the transactions contemplated thereby, to the extent that it was
based on the fact that such Indemnified Party is or was a director or officer of
Beringer and arising out of actions or omissions or alleged actions or omissions
occurring at or prior to the Effective Time, and in the event of any such claim,
action, suit, proceeding or investigation (whether arising before or after the
Effective Time),
- Beringer or the Surviving Corporation, as applicable, shall pay the
reasonable fees and expenses of counsel selected by the Indemnified
Parties, which counsel shall be reasonably satisfactory to Beringer or the
Surviving Corporation, as promptly as statements therefor are received,
and
- Beringer and the Surviving Corporation will cooperate in the defense of
any such matter.
However, neither Beringer nor the Surviving Corporation shall be liable for any
settlement effected without its written consent (which consent shall not be
unreasonably withheld).
The Merger Agreement provides that for six years after the Effective Time,
the Surviving Corporation will be required to maintain or obtain officers' and
directors' liability insurance covering the Indemnified Parties who are
currently covered by Xxxxxxxx'x officers and directors liability insurance
policy on terms not less favorable than those in effect on the date of the
Merger Agreement in terms of coverage and amounts; provided, however, that the
Surviving Corporation will not be required to expend in any year an amount in
excess of 200% of the annual aggregate premiums currently paid by Beringer for
such insurance; and provided, further, that if the annual premiums of such
insurance coverage exceed such amount, the Surviving Corporation will be
obligated to obtain a policy with the best coverage available, in the reasonable
judgment of its Board of Directors, for a cost not exceeding such amount.
Nothing in the Merger Agreement prohibits the Surviving Corporation from
complying with its obligations under the preceding sentence by obtaining
insurance coverage under any policy maintained by Xxxxxx'x or any of its
subsidiaries. Xxxxxx'x has agreed to cause the Surviving Corporation to
reimburse all expenses, including reasonable attorney's fees and expenses,
incurred by any person to enforce the foregoing obligations. Xxxxxx'x has agreed
that these provisions will survive consummation of the Merger and be binding on
all successors and assigns.
EMPLOYEE BENEFIT ARRANGEMENTS. With respect to employee benefit matters,
the Merger Agreement provides that at the Effective Time, the Surviving
Corporation will continue as the plan sponsor of each of Xxxxxxxx'x employee
benefit plans. For at least one year following the Effective Time, employees of
Beringer and its subsidiaries will receive employee benefits that, in the
aggregate, are substantially comparable to the employee benefits provided
immediately prior to the execution of the Merger Agreement (excluding any stock
options or other stock based compensation), except (i) for termination of the
Option Plans and the employee stock purchase plan or (ii) as required by
applicable law (including as required to preserve any favorable tax treatment
afforded such benefits as of the Effective Time).
STANDSTILL AND CONFIDENTIALITY AGREEMENTS; ANTI-TAKEOVER PROVISIONS. The
Merger Agreement provides that through the Effective Time, except to the extent
required in order to take any of the actions
31
permitted under the provisos in the Merger Agreement of the No Shop covenant
described above, Beringer:
- will not terminate, amend, modify or waive any provision of any
confidentiality or standstill agreement to which it or any of its
subsidiaries is a party; and
- will enforce, to the fullest extent permitted under applicable law, the
provisions of any such agreement, including by obtaining injunctions to
prevent any breaches of such agreements and to enforce specifically the
terms and provisions thereof in any court having jurisdiction.
CONDITIONS TO CONSUMMATION OF THE MERGER. Pursuant to the Merger Agreement,
the respective obligations of Xxxxxx'x, Purchaser and Beringer to effect the
Merger are subject to the satisfaction, on or prior to the closing of the
Merger, of each of the following conditions (any or all of which may be waived
by the parties to the Merger Agreement in writing, in whole or in part, to the
extent permitted by applicable law):
- Purchaser shall have made, or caused to be made, the Offer and shall
have accepted for payment, the Shares validly tendered and not
withdrawn pursuant to the Offer; PROVIDED, HOWEVER, neither Xxxxxx'x
nor Purchaser may invoke this condition if Purchaser fails to make or
cause to be made the Offer or to accept for payment or pay for Shares
pursuant to the Offer in violation of the terms of the Offer or of the
Merger Agreement;
- The Merger Agreement shall have been adopted by the requisite vote of
the stockholders of Beringer, if required by the DGCL; and
- No statute, rule, regulation, judgment, writ, decree, order or
injunction (whether temporary, preliminary or permanent) shall have
been promulgated, enacted, entered or enforced, and no other action
shall have been taken, by any government or governmental,
administrative or regulatory authority or by any court of competent
jurisdiction, that in any of the foregoing cases has the effect of
making illegal or directly or indirectly restraining, prohibiting or
restricting the consummation of the Merger.
TERMINATION. The Merger Agreement may be terminated at any time before the
Effective Time, whether before or after approval of Xxxxxxxx'x stockholders:
(1) By mutual written consent of the Xxxxxx'x and Beringer; or
(2) By either Xxxxxx'x or Beringer if any governmental or regulatory
authority, domestic or foreign, including, without limitation, any
quasi-governmental, supranational, statutory, environmental entity or any stock
exchange or court shall have issued an order, judgment or decree, enacted a
statute, rule, law, regulation or other legal requirement or taken any other
action which shall have become final and nonappealable, in each case permanently
restraining, enjoining, making illegal or otherwise prohibiting:
- the transactions contemplated by the Merger Agreement; or
- prior to the Purchaser's purchase of Shares in the Offer (the "Offer
Completion Date"), for the benefit of Xxxxxx'x only, the purchase of
Shares from the parties to the Tender Agreement, pursuant to the Tender
Agreement or otherwise, or
(3) By either Xxxxxx'x or Beringer if the Offer has not been consummated by
January 31, 2001, or
(4) By Beringer; if at any time prior to the Offer Completion Date:
- There shall be a material breach of any of the representations or
warranties of Xxxxxx'x or Purchaser under the Merger Agreement, which
breach shall not have been cured within 15 calendar days of the receipt
of written notice thereof by Xxxxxx'x from Beringer; or
32
- There shall have been a material breach on the part of Xxxxxx'x or
Purchaser of any of their respective covenants or agreements under the
Merger Agreement, which breach shall not have been cured within 15
calendar days of the receipt of written notice thereof by Xxxxxx'x from
Beringer; or
(5) By Xxxxxx'x, if at any time prior to the Offer Completion Date:
- There shall be a material breach of any of Xxxxxxxx'x representations
or warranties under the Merger Agreement, which breach shall not have
been cured within 15 calendar days of the receipt of written notice
thereof by Beringer from Xxxxxx'x, or
- There shall have been a material breach on the part of Beringer of any
of its covenants or agreements under the Merger Agreement, which breach
shall not have been cured within 15 calendar days of the receipt of
written notice thereof by Beringer from Xxxxxx'x;
(6) By Xxxxxx'x, if at any time prior to the Offer Completion Date:
- The Beringer Board or any committee thereof shall withdraw, modify or
change its recommendation or approval in respect of the Merger
Agreement, the Offer or the Merger in a manner adverse to Xxxxxx'x, or
shall have failed to reconfirm its approval or recommendation in
respect of the Merger Agreement within five business days after a
written request from Xxxxxx'x to do so, or the Beringer Board or any
committee thereof shall have resolved to take such action,
- The Beringer Board or any committee thereof shall have recommended any
proposal other than by Xxxxxx'x in respect of any Acquisition
Transaction, or the Beringer Board or any committee thereof shall have
resolved to take such action,
- Beringer shall take any action in significant breach of the No Shop
provision of the Merger Agreement, or
- Any Person or group (as defined in Section 13(d)(3) of the Exchange
Act) other than Xxxxxx'x, Purchaser or any of their respective
subsidiaries or affiliates or any party to the Tender Agreement, shall
have become the beneficial owner of more than 40% of the outstanding
Shares (either on a primary or a fully diluted basis), or
- In the case of the first three bullet points of this paragraph (6), the
Beringer Board or any committee thereof shall have resolved to take
such action.
However, no public statement by Beringer that (A) it has received proposal
regarding an Acquisition Transaction, (B) it has given Xxxxxx'x the notice
required by the Merger Agreement in connection with its withdrawal of its
recommendations, or (C) otherwise only describes the technical operation of the
No Shop, Termination Fee and Termination provisions of the Merger Agreement will
be deemed to be a public proposal to withdraw or modify the Beringer Board's
recommendation for the purposes of the above Termination provision and the No
Shop provision; or
(7) By either Xxxxxx'x or Beringer if the Offer expires or is terminated or
withdrawn pursuant to its terms without any Shares being purchased thereunder by
Purchaser as a result of the failure of any of the conditions or the occurrence
of any of the events set forth in Section 14.
(8) By Beringer at any time prior to the Offer Completion Date if the
Beringer Board authorizes Beringer, subject to complying with the terms of the
Merger Agreement, to enter into a written agreement concerning a Superior
Proposal with respect to Beringer; so long as
- Beringer shall have complied with the No Shop provision;
33
- Beringer shall have given Xxxxxx'x at least four business days prior
written notice of its intention to terminate the Merger Agreement,
attaching a description of all the material terms and conditions of such
Superior Proposal to such notice;
- During such four business days or greater period, Beringer engages in good
faith negotiations with Xxxxxx'x with respect to such changes as Xxxxxx'x
may propose to the terms of the Merger and the Merger Agreement;
- Xxxxxx'x does not make prior to such termination of the Merger Agreement a
definitive, binding offer which the Beringer Board determines, in good
faith after consultation with its financial advisors, is at least as
favorable to the stockholders of Beringer as such Superior Proposal; and
- Prior to or concurrently with such termination pursuant to this Section
Beringer pays to Xxxxxx'x in immediately available funds the fee required
to be paid (see "Termination Fee").
Beringer will notify Xxxxxx'x promptly if its intention to enter into a written
agreement referred to in its notification shall change at any time after giving
such notification;
Pursuant to the Merger Agreement, in the event of the termination of the
Merger Agreement, written notice shall promptly be given to the other party
specifying the provision of the Merger Agreement under which such termination is
made and the Merger Agreement will become void and there shall be no liability
on the part of Xxxxxx'x, Purchaser or Beringer, except that certain specified
provisions shall survive the termination of the Merger Agreement and no party
will be relieved from liability for any prior deliberate or willful breach of
the Merger Agreement.
TERMINATION FEE. Beringer will pay to Xxxxxx'x a termination fee of
$53.7 million in any of the following circumstances:
- If the Merger Agreement is terminated pursuant to paragraph (5) above, and
- at the time of such termination,
- the Merger Agreement is not terminable pursuant to paragraph (4),
and
- a proposal for an Acquisition Transaction shall have been made
known to Beringer or been made directly to its stockholders
generally or any Person shall have publicly announced an intention
(whether or not conditional) to make a proposal for an Acquisition
Transaction; and
- within one year of such termination, Beringer becomes a subsidiary of
any Person or consummates an Acquisition Transaction,
- If Xxxxxx'x terminates the Merger Agreement pursuant to its right
described in paragraph (6) above,
- If Beringer terminates the Merger Agreement pursuant to its right
described in paragraph (8) above,
- If the Merger Agreement is terminated by either Beringer or Xxxxxx'x
pursuant to their rights described in paragraphs (3) or (7) above, and
- prior to such termination,
- the Minimum Condition shall not have been satisfied but each other
condition to the Offer shall have been satisfied, and
- a proposal for an Acquisition Transaction shall have been made
known to Beringer or been made directly to its stockholders
generally or any Person shall have publicly
34
announced its intention (whether or not conditional) to make a
proposal for an Acquisition Transaction, and
- within one year of such termination, Beringer becomes a subsidiary
of any Person or consummates an Acquisition Transaction.
The provisions of the Termination Fee section of the Merger Agreement
survive any termination of the Merger Agreement. Except as described above, each
party will bear its own expenses in connection with the Merger Agreement and the
transactions contemplated thereby.
AMENDMENT. The Merger Agreement may be amended by Beringer, Xxxxxx'x and
Purchaser at any time before the Effective Time and at any time before or after
any adoption of the Merger Agreement by the stockholders but, after any such
adoption, no amendment may be made which reduces the amount or changes the type
of consideration into which each Share will be converted upon consummation of
the Merger. The Merger Agreement may not be amended except by an instrument in
writing signed by the parties.
EXTENSION; WAIVER. At any time before the Effective Time, any party may:
- extend the time for the performance of any of the obligations or other
acts of the other parties,
- waive any inaccuracies in the representations and warranties contained
in the Merger Agreement or in any document delivered pursuant to the
Merger Agreement, and
- waive compliance with any of the agreements or conditions contained in
the Merger Agreement.
Any agreement on the part of a party to any extension or waiver shall be valid
only as against such party and only if set forth in an instrument in writing
signed by such party. Any such waiver shall constitute a waiver only with
respect to the specific matter described in such writing and shall in no way
impair the rights of the party granting such waiver in any other respect or at
any other time. Neither the waiver by any of the parties to the Merger Agreement
of a breach of or a default under any of the provisions of the Merger Agreement,
nor the failure by any of the parties, on one or more occasions, to enforce any
of the provisions of the Merger Agreement or to exercise any right or privilege
under the Merger Agreement, will be construed as a waiver of any other breach of
default of a similar nature, or as a waiver of any of such provisions, rights or
privileges under the Merger Agreement. The rights and remedies provided in the
Merger Agreement are cumulative and none is exclusive of any other, or of any
rights or remedies that any party may otherwise have at law or in equity.
THE TENDER, VOTING AND OPTION AGREEMENT
In connection with the execution of the Merger Agreement, the Selling
Stockholders have entered into the Tender Agreement. The Selling Stockholders
own a sufficient number of Shares so that the tender of their Shares in the
Offer as contemplated by the Tender Agreement will satisfy the Minimum
Condition.
AGREEMENT TO TENDER SHARES. Each Selling Stockholder has agreed to validly
tender (and not withdraw), in accordance with the Offer, not later than the
tenth business day after commencement of the Offer, all of the Shares
beneficially owned as of August 28, 2000 or acquired after August 28, 2000 by
the Selling Stockholders ("Subject Shares") (other than Shares for which
unexercised Options are exercisable unless such Options have been exercised). In
the event that, notwithstanding the foregoing provision, any Subject Shares are
for any reason withdrawn from or not purchased under the Offer,
35
those Subject Shares will remain subject to the terms of the Tender Agreement.
Nothing in the Tender Agreement obligates any Selling Stockholder to exercise
any Options to purchase Shares.
AGREEMENT TO VOTE SUBJECT SHARES. Each Selling Stockholder has agreed that
at any meeting of the stockholders of Beringer called to consider and vote upon
the adoption of the Merger Agreement (and at any and all postponements and
adjournments), and in connection with any action to be taken in respect of the
adoption of the Merger Agreement by written consent of Xxxxxxxx'x stockholders,
such Selling Stockholder will vote or cause to be voted (including by written
consent, if applicable) all of the Selling Stockholder's Subject Shares which it
has the right to vote in favor of the adoption of the Merger Agreement and in
favor of any other matter necessary or appropriate for the consummation of the
transactions contemplated by the Merger Agreement that is considered and voted
upon at any meeting or made the subject of any written consent, as applicable.
Each Selling Stockholder has further agreed that at any meeting of the
stockholders called to consider and vote upon any Adverse Proposal (and at any
and all postponements and adjournments), and in connection with any action to be
taken in respect of any Adverse Proposal by written consent of stockholders,
each Selling Stockholder will vote or cause to be voted (including by written
consent, if applicable) all of the Selling Stockholder's Subject Shares which it
has the right to vote against the adoption of such Adverse Proposal. For
purposes of the Tender Agreement, the term "Adverse Proposal" means:
- any Acquisition Transaction;
- any proposal or action that would reasonably be expected to result in a
breach of any covenant, representation or warranty of Beringer set forth
in the Merger Agreement; or
- any of the following actions (other than the Offer, the Merger and the
other transactions contemplated by the Merger Agreement):
- any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving Beringer or its
subsidiaries;
- a sale, lease or transfer of a material amount of assets of Beringer or
one of its subsidiaries, or a reorganization, recapitalization,
dissolution or liquidation of Beringer or any of its subsidiaries;
(1) any change in a majority of the persons who constitute the
Beringer Board as of August 28, 2000;
(2) any change in the present capitalization of Beringer or any
amendment of Xxxxxxxx'x Certificate of Incorporation or By-Laws,
as amended to date;
(3) any other material change in Xxxxxxxx'x corporate structure or
business; or
- any action that, in the case of each of the matters referred to in clauses
(1), (2) and (3) above is intended, or could reasonably be expected, to
impede, interfere with, delay, postpone, or adversely affect the Offer or
the Merger and the other transactions contemplated by the Merger Agreement
and the Tender Agreement or increase the likelihood that the transactions
will not be consummated.
IRREVOCABLE PROXY. Each Selling Stockholder appointed Xxxxxx'x and any
designee of Xxxxxx'x as such Selling Stockholder's proxy and attorney-in-fact,
with full power of substitution and resubstitution, to vote or act by written
consent with respect to all of the Selling Stockholder's Subject Shares which it
has the right to vote:
- in accordance with the agreement to vote Subject Shares as described
above; and
36
- to sign its name (as stockholder) to any consent, certificate or other
document relating to Beringer required or permitted under the DGCL in
connection with any matter referred to in such agreement to vote Subject
Shares.
This proxy was given to secure the performance of the duties of each Selling
Stockholder under the Tender Agreement and does not relieve the Selling
Stockholders of their obligations under the foregoing agreement to vote Subject
Shares provision. Each proxy is coupled with an interest and is irrevocable
until the termination of the Tender Agreement in accordance with its terms. Each
Selling Stockholder agreed to take further actions or execute other instruments
as may be necessary to effectuate the intent of this proxy. For Subject Shares
as to which a Selling Stockholder is the beneficial but not the record owner,
the Selling Stockholder agreed to cause any record owner of those Subject Shares
to grant to Xxxxxx'x a proxy to the same effect.
GRANT OF SUBJECT OPTION. Under the Tender Agreement, each Selling
Stockholder granted to Xxxxxx'x an irrevocable option (each, a "Subject Option"
and, collectively, the "Subject Options") to purchase the Selling Stockholder's
Subject Shares on the terms and subject to the conditions set forth in the
Tender Agreement at a purchase price per share equal to the Per Share Amount
(the "Purchase Price"). The Subject Options expire if the Merger Agreement is
terminated for any reason.
The Subject Options become exercisable if the Offer is consummated but
(whether due to improper tender or withdrawal of tender) Purchaser has not
accepted for payment and paid for all of the Subject Shares. The Subject Options
are exercisable in whole but not in part.
SHARING OF PROFITS. Under the Tender Agreement the TPG Partners, L.P., TPG
Parallel I, L.P., TPG GenPar, L.P. and Wine Partners, L.P. (the "TPG
Stockholders") agreed that if the Merger Agreement is terminated under certain
circumstances in which Xxxxxx'x is entitled to receive a termination fee from
Beringer and not later than one year from the date the Merger Agreement is
terminated (i) Beringer consummates a merger, acquisition, consolidation,
recapitalization, liquidation, dissolution or similar transaction involving, or
any sale of all or substantially all of the assets or equity securities of,
Beringer and its subsidiaries (a "Business Combination"), (ii) Beringer enters
into an Acquisition Agreement providing for a Business Combination, which
Business Combination is ultimately consummated, irrespective of when such
consummation occurs, (iii) a TPG Stockholder disposes of any or all of its
Subject Shares to any person not an affiliate or an associate of Xxxxxx'x or
Purchaser or to Beringer or any affiliate thereof in connection with a Business
Combination, or (iv) a TPG Stockholder realizes proceeds in respect of its
Subject Shares as a result of a distribution to the TPG Stockholder by Beringer
following the sale of substantially all of Xxxxxxxx'x assets in connection with
a Business Combination at a per share price or with equivalent per share
proceeds having a value in excess of the Per Share Amount (the "Subsequent
Price"), then the TPG Stockholder will promptly pay to Xxxxxx'x an amount equal
to one-half of the product of:
- the excess of the Subsequent Price over the Per Share Amount, multiplied
by
- the number of Subject Shares beneficially owned (other than beneficially
owned solely by reason of having a right to vote) by the TPG Stockholder
at the time the Business Combination is consummated or at the time of
disposal by the TPG Stockholder.
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INDEMNIFICATION. The Tender Agreement provides that, if Shares are
purchased in the Offer in accordance with the terms of the Merger Agreement,
Xxxxxx'x and Purchaser will jointly and severally indemnify fully, hold harmless
and defend the TPG Stockholders and their respective successors and assigns
solely in such party's capacity as a stockholder of Beringer (collectively, the
"Indemnitees") from and against any and all costs and expenses (including, but
not limited to, reasonable attorneys' fees and the costs and expenses of
investigating, defending and litigating any claims), judgments, fines, losses,
claims, damages and liabilities to the extent sustained or incurred by any
Indemnitee in connection with any action, suit or proceeding by or on behalf of
any stockholder, other than an Indemnitee (a "Claim") arising out of, relating
to or based upon the Tender Agreement or the Merger Agreement or the
transactions contemplated thereby so long as the Indemnitee acted in good faith
in connection with the matters that are the subject of such Claim.
Notwithstanding anything contained in the Indemnification provision of the
Tender Agreement, no claim for indemnity under this provision may be asserted by
any Indemnitee arising or resulting from:
- any breach by Beringer of any representation, warranty or covenant of
Beringer in the Merger Agreement; or
- any breach by any party to the Tender Agreement (other than by Xxxxxx'x or
Purchaser) of any representation, warranty or covenant in the Tender
Agreement.
REPRESENTATIONS AND WARRANTIES. The Selling Stockholders made customary
representations and warranties in the Tender Agreement relating to:
- Subject Share ownership;
- power and authority to enter into the Tender Agreement;
- execution and delivery of the Tender Agreement;
- no conflicts; and
- absence of brokers fees.
Xxxxxx'x and Purchaser also made customary representations and warranties in the
Tender Agreement relating to:
- organization and authority to enter into the Tender Agreement;
- execution and delivery of the Tender Agreement;
- no conflicts; and
- securities law compliance.
RESTRICTION ON TRANSFER OF SUBJECT SHARES, PROXIES AND
NONINTERFERENCE. Each Selling Stockholder has agreed that such Selling
Stockholder will not directly or indirectly:
- except in accordance with the terms of the Tender Agreement and for the
conversion of Subject Shares at the Effective Time in accordance with the
terms of the Merger Agreement and other limited circumstances, offer for
sale, sell, transfer, tender, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of,
any or all of such Selling Stockholder's Subject Shares;
- acquire any Shares or other securities of Beringer (other than in the
event of any adjustment of Xxxxxxxx'x Shares or the grant of Shares to
members of the Beringer Board as director compensation in accordance with
past practice);
38
- except in accordance with the terms of the Tender Agreement, grant any
proxies or powers of attorney, deposit any Subject Shares into a voting
trust or enter into a voting agreement with respect to any Subject Shares;
or
- take any action that would reasonably be expected to make any of the
Selling Stockholder's representations and warranties contained in the
Tender Agreement untrue or incorrect or have the effect of impairing the
ability of the Selling Stockholder to perform its obligations under the
Tender Agreement or preventing or delaying the consummation of any of the
transactions contemplated by the Tender Agreement.
NO SOLICITATION. The Tender Agreement provides that no Selling Stockholder
will take, or authorize or permit any of its officers, directors, employees,
agents or representatives (including any investment banker, financial advisor,
attorney or accountant of the Selling Stockholder) to take, any action that
Beringer would be prohibited from taking under the first sentence of the No Shop
provision of the Merger Agreement (disregarding the proviso contained in that
sentence). Each Selling Stockholder has agreed to immediately advise Xxxxxx'x in
writing of the receipt of a request for information or any inquiries or
proposals relating to an Acquisition Transaction. Notwithstanding anything in
the Tender Agreement to the contrary:
- if any Selling Stockholder is a director of Beringer, that Selling
Stockholder may take actions in its capacity as a director to the extent
permitted by the No Shop provision of the Merger Agreement; and
- if any Selling Stockholder is an officer of Beringer, he or she may take
actions in his or her capacity as an officer to the extent directed to do
so by the Beringer Board in compliance with the No Shop provision of the
Merger Agreement.
TERMINATION. The Tender Agreement will terminate on the earliest to occur
of:
- the purchase of all the Subject Shares in the Offer;
- the Effective Time; or
- the date the Merger Agreement is terminated in accordance with its terms.
The Tender Agreement may be earlier terminated by the mutual consent of
Xxxxxx'x and the Selling Stockholders representing a majority of the Subject
Shares subject to the Tender Agreement.
In the event of termination of the Tender Agreement, such agreement will
become null and void and of no effect with no liability on the part of any party
and all proxies granted thereby will be automatically revoked, except that no
such termination will relieve any party thereto from any liability for any
breach of that agreement occurring prior to such termination. Notwithstanding
anything in the Tender Agreement to the contrary, if the Tender Agreement is
terminated for any reason, the Sharing of Profits provision described above will
survive such termination indefinitely and if the Tender Agreement is terminated
after Shares are purchased in the Offer or the Effective Time, the
Indemnification provision described above will survive such termination for a
period of six years.
FIDUCIARY DUTIES. The Tender Agreement provides that nothing therein shall
limit or affect any actions taken by any Selling Stockholder in his or her
capacity as an officer or director of Beringer and that none of such actions in
any such capacity shall be deemed to constitute a breach of the Tender
Agreement.
OTHER MATTERS
EFFECTS OF INABILITY TO CONSUMMATE THE MERGER. Pursuant to the Merger
Agreement, following the consummation of the Offer and subject to certain other
conditions, Purchaser will be merged with and
39
into Beringer. If, following the Offer, approval of Xxxxxxxx'x stockholders is
required by applicable law in order to consummate the Merger, Beringer will
submit the Merger to Xxxxxxxx'x stockholders for approval. If the Merger is
submitted to Xxxxxxxx'x stockholders for approval, the Merger will require the
approval of a majority of the outstanding Shares, including the Shares owned by
Purchaser. If the Offer is consummated, and the Minimum Condition is satisfied
without being reduced or waived, Purchaser will be able to approve the Merger
without the vote of any other stockholder.
If the Merger is consummated, stockholders of Beringer who elected not to
tender their Shares in the Offer will receive the same amount of consideration
in exchange for each Share as they would have received in the Offer, subject to
their rights to exercise appraisal rights.
If, following the consummation of the Offer, the Merger is not consummated,
Xxxxxx'x, which indirectly owns 100% of the common stock of Purchaser, will
indirectly control the number of Shares acquired by Purchaser pursuant to the
Offer. Under the Merger Agreement, promptly following payment by Purchaser for
Shares purchased pursuant to the Offer, and from time to time thereafter,
subject to applicable law, Beringer has agreed to take all actions necessary to
cause a majority of the members of the Beringer Board to consist of persons
designated by Xxxxxx'x (whether, by election or by the resignation of existing
directors and causing Xxxxxx'x designees to be elected). As a result of its
ownership of such Shares and right to designate nominees for election to
Beringer Board, Xxxxxx'x will indirectly be able to influence decisions of the
Beringer Board and the decisions of Purchaser as the majority stockholder of
Beringer. This concentration of influence in one stockholder may adversely
affect the market value of the Shares.
If Xxxxxx'x controls more than 50% of the voting power of the outstanding
Voting Securities following the consummation of the Offer but the Merger is not
consummated, stockholders of Beringer, other than those affiliated with
Xxxxxx'x, will lack sufficient voting power to elect directors or to cause other
actions to be taken which require majority approval. If, for any reason
following completion of the Offer, the Merger is not consummated, Xxxxxx'x and
Purchaser reserve the right, subject to any applicable legal restrictions, to
acquire additional Shares through private purchases, market transactions, tender
or exchange offers or otherwise on terms and at prices that may be more or less
favorable than those of the Offer or, subject to any applicable legal
restrictions, to dispose of any or all Shares acquired by Xxxxxx'x and
Purchaser.
STATUTORY REQUIREMENTS. In general, under the DGCL a merger of two Delaware
corporations requires the adoption of a resolution by each of the corporations
desiring to merge approving an agreement of merger containing provisions with
respect to certain statutorily specified matters and the adoption of such
agreement of merger by the stockholders of each corporation by the affirmative
vote of the holders of a majority of all the outstanding shares of stock
entitled to vote on such merger. According to Xxxxxxxx'x Certificate of
Incorporation, the Class A Shares and the Class B Shares are the only securities
of Beringer which entitle the holders thereof to voting rights.
The DGCL also provides that if a parent company owns at least 90% of each
class of stock of a subsidiary, the parent company can effect a short-form
merger with that subsidiary without the action of the other stockholders of the
subsidiary. Accordingly, if as a result of the Offer or otherwise, Purchaser
acquires or controls 100% of the Class A Shares and at least 90% of the Class B
Shares, Purchaser could, and intends to, effect the Merger without prior notice
to, or any action by, any other stockholder of Beringer.
APPRAISAL RIGHTS. No appraisal rights are available in connection with the
Offer. If the Merger is consummated, however, stockholders of Beringer who have
not tendered their Shares will have certain rights under the DGCL to dissent and
demand appraisal of, and to receive payment in cash of the fair value of, their
Shares. Stockholders who perfect such rights by complying with the procedures
set forth in Section 262 of the DGCL ("Section 262") will have the fair value of
their Shares (exclusive of any element of value arising from the accomplishment
or expectation of the Merger) determined by the
40
Delaware Court of Chancery and will be entitled to receive a cash payment equal
to such fair value from the Surviving Corporation. In addition, such dissenting
stockholders would be entitled to receive payment of a fair rate of interest
from the date of consummation of the Merger on the amount determined to be the
fair value of their Shares. In determining the fair value of the Shares, the
court is required to take into account all relevant factors. Accordingly, such
determination could be based upon considerations other than, or in addition to,
the market value of the Shares, including, among other things, asset values and
earning capacity. In XXXXXXXXXX X. XXX, INC., the Delaware Supreme Court stated
that "proof of value by any techniques or methods which are generally considered
acceptable in the financial community and otherwise admissible in court" should
be considered in an appraisal proceeding. The XXXXXXXXXX court also noted that
under Section 262, fair value is to be determined "exclusive of any element of
value arising from the accomplishment or expectation of the merger." In CEDE &
CO. V. TECHNICOLOR, INC., however, the Delaware Supreme Court stated that, in
the context of a two-step cash merger, "to the extent that value has been added
following a change in majority control before cash-out, it is still value
attributable to the going concern," to be included in the appraisal process. As
a consequence of the foregoing, the fair value determined in any appraisal
proceeding could be the same as or more or less than $55.75 per Share.
Xxxxxx'x does not intend to object, assuming the proper procedures are
followed, to the exercise of appraisal rights by any stockholder and the demand
for appraisal of, and payment in cash for the fair value of, the Shares.
Xxxxxx'x intends, however, to cause the Surviving Corporation to argue in an
appraisal proceeding that, for purposes of such proceeding, the fair value of
each Share is less than the Merger Consideration. In this regard, stockholders
should be aware that opinions of investment banking firms as to the fairness
from a financial point of view (including Xxxxxxx, Xxxxx & Co.'s opinion
described herein) are not necessarily opinions as to "fair value" under Section
262.
Several decisions by Delaware courts have held that, in certain
circumstances, a controlling stockholder of a company involved in a merger has a
fiduciary duty to other stockholders that requires that the merger be "entirely
fair" to such other stockholders. In determining whether a merger is fair to
minority stockholders, Delaware courts have considered, among other things, the
type and amount of consideration to be received by the stockholders and whether
there was fair dealing among the parties. The Delaware Supreme Court stated in
XXXXXXXXXX and in RABKIN V. XXXXXX X. XXXX CHEMICAL CORP. that although the
remedy ordinarily available to minority stockholders in a cash-out merger that
is found to be not fair to the minority stockholders is the right to appraisal
described above, monetary damages, injunctive relief or such other relief as the
court may fashion may be available if a merger is found to be the product of
procedural unfairness, including fraud, misrepresentation or other misconduct.
THE FOREGOING SUMMARY OF THE RIGHTS OF DISSENTING STOCKHOLDERS UNDER THE
DGCL DOES NOT PURPORT TO BE A COMPLETE STATEMENT OF THE PROCEDURES TO BE
FOLLOWED BY STOCKHOLDERS DESIRING TO EXERCISE ANY APPRAISAL RIGHTS AVAILABLE
UNDER THE DGCL.
THE PRESERVATION AND EXERCISE OF APPRAISAL RIGHTS REQUIRE STRICT ADHERENCE
TO THE APPLICABLE PROVISIONS OF THE DGCL.
GOING PRIVATE TRANSACTIONS. The Commission has promulgated Rule 13e-3 under
the Exchange Act which is applicable to certain "going private" transactions and
which may under certain circumstances be applicable to the Merger or another
business combination following the purchase of Shares pursuant to the Offer in
which Purchaser seeks to acquire the remaining Shares not held by it. However,
Purchaser believes that Rule 13e-3 will be inapplicable because it is
anticipated that (1) the Class B Shares will be deregistered under the Exchange
Act prior to the Merger or other business combination or (2) the Merger or other
business combination will be consummated within one year after the purchase of
the Shares pursuant to the Offer and the amount paid per Share in the Merger or
other business combination is at least equal to the amount paid per Share in the
Offer. If applicable, Rule 13e-3 would require, among other things, that certain
financial information regarding Beringer and
41
certain information regarding the fairness of the Merger and the consideration
offered to minority stockholders be filed with the Commission and disclosed to
minority stockholders prior to consummation of the Merger.
13. DIVIDENDS AND DISTRIBUTIONS
If, on or after the date of the Merger Agreement, Beringer:
- splits, combines or otherwise changes the Shares or its capitalization,
- acquires Shares or otherwise causes a reduction in the number of Shares,
- issues or sells additional Shares (other than the issuance of Shares
reserved for issuance as of the date of the Merger Agreement under option
and employee stock purchase plans in accordance with their terms as
publicly disclosed as of the date of the Merger Agreement) or any shares
of any other class of capital stock, other voting securities or any
securities convertible into or exchangeable for, or rights, warrants or
options, conditional or otherwise, to acquire, any of the foregoing, or
- discloses that it has taken such action,
then, without prejudice to Purchaser's rights under Section 14, Purchaser, in
its sole discretion, may make such adjustments in the Per Share Amount and other
terms of the Offer as it deems appropriate to reflect such split, combination or
other change or action, including, without limitation, the Minimum Condition or
the number or type of securities offered to be purchased.
The Merger Agreement provides that Beringer will not, and will not permit
any of its subsidiaries to, without the consent of Xxxxxx'x or Purchaser:
- declare, set aside or pay any dividends on, or make any other
distributions in respect of, any of its capital stock,
- split, combine or reclassify any of its capital stock or issue or
authorize the issuance of any other securities in respect of, in lieu of
or in substitution for shares of its capital stock, or
- purchase, redeem or otherwise acquire any shares of capital stock of
Beringer or any of its subsidiaries or any other securities thereof or any
rights, warrants or options to acquire any such shares or other securities
provided that nothing therein stated will limit Xxxxxxxx'x right to cancel
the Options in exchange for the Per Share Amount.
If, on or after the date of the Merger Agreement, Beringer declares or pays
any dividend on the Shares or any distribution (including, without limitation,
the issuance of additional Shares pursuant to a stock dividend or stock split,
the issuance of other securities or the issuance of rights for the purchase of
any securities) with respect to the Shares that is payable or distributable to
stockholders of record on a date prior to the transfer into the name of
Purchaser or its nominees or transferees on Xxxxxxxx'x stock transfer records of
the Shares purchased pursuant to the Offer, and if Shares are purchased in the
Offer, then, without prejudice to Purchaser's rights under Section 14:
- The Per Share Amount shall be reduced by the amount of any such cash
dividend or cash distribution, and
- Any such non-cash dividend, distribution, issuance, proceeds or right to
be received by the tendering stockholders shall:
- Be received and held by the tendering stockholders for the account of
Purchaser and will be required to be promptly remitted and transferred
by each tendering stockholder to the Depositary for the account of
Purchaser, accompanied by appropriate documentation of transfer, or
42
- At the direction of Purchaser, be exercised for the benefit of
Purchaser, in which case the proceeds of such exercise will promptly be
remitted to Purchaser.
Pending such remittance and subject to applicable law, Purchaser will be
entitled to all rights and privileges as the owner of any such non-cash
dividend, distribution, issuance, proceeds or right and may withhold the entire
purchase price or deduct from the purchase price the amount of value thereof, as
determined by Purchaser in its sole discretion.
14. CERTAIN CONDITIONS OF THE OFFER
CONDITIONS TO THE OFFER. Notwithstanding any other provision of the Offer,
Purchaser will not be required to accept for payment or, subject to any
applicable rules and regulations of the Commission, including Rule 14e-1(c)
promulgated under the Exchange Act (relating to Purchaser's obligation to pay
for or return tendered Shares promptly after termination or withdrawal of the
Offer), pay for, and (subject to any such rules or regulations) may delay the
acceptance for payment of any tendered Shares and (except as provided in the
Merger Agreement) amend or terminate the Offer (whether or not any Shares have
theretofore been purchased or paid for pursuant to the Offer) (A) unless the
following conditions shall have been satisfied: (i) the Minimum Condition and
(ii) any applicable waiting period under the HSR Act shall have expired or been
terminated prior to the expiration of the Offer, or (B) if at any time on or
after the date of the Merger Agreement and prior to the time of acceptance of
Shares for payment or payment therefor any of the following conditions exists:
(a) there shall be in effect an injunction or other order, decree,
judgment or ruling by a court of competent jurisdiction or by a
governmental, regulatory or administrative agency or commission of competent
jurisdiction or a statute, rule, regulation, executive order or other action
shall have been promulgated, enacted or taken by a governmental authority or
a governmental, regulatory or administrative agency or commission of
competent jurisdiction which in any such case (i) restrains or prohibits the
making or consummation of the Offer, the consummation of the Merger or the
purchase of Shares pursuant to the Tender Agreement, (ii) prohibits or
restricts the ownership or operation by Xxxxxx'x (or any of its affiliates
or subsidiaries) of any material portion of its or Xxxxxxxx'x business or
assets, or compels Xxxxxx'x (or any of its affiliates or subsidiaries) to
dispose of or hold separate any material portion of its or Xxxxxxxx'x
business or assets, (iii) imposes material limitations on the ability of
Xxxxxx'x effectively to acquire or to hold or to exercise full rights of
ownership of the Shares, including, without limitation, the right to vote
the Shares purchased by Purchaser on all matters properly presented to the
stockholders of Beringer, (iv) imposes any material limitations on the
ability of Xxxxxx'x or any of its affiliates or subsidiaries effectively to
control in any material respect the business and operations of Beringer, or
(v) which otherwise would have a Beringer Material Adverse Effect; or
(b) there shall be instituted or pending any action or proceeding by a
governmental authority before any governmental, regulatory or administrative
agency or commission of competent jurisdiction seeking any injunction,
order, decree, judgment or ruling having any effect set forth in (a) above;
or
(c) the Merger Agreement shall have been terminated by Beringer or
Xxxxxx'x in accordance with its terms or any event shall have occurred which
gives Xxxxxx'x or Purchaser the right to terminate the Merger Agreement or
not consummate the Merger; or
(d) (i) any representation or warranty made by Beringer in the Merger
Agreement shall not have been true and correct in all material respects when
made if the representation or warranty is not qualified as to materiality or
a Beringer Material Adverse Effect or, if so qualified, shall not have been
true and correct when made, or shall have ceased to be true and correct in
all material respects as of the Expiration Date as if made as of such date
if the representation or warranty is not qualified as to materiality or a
Beringer Material Adverse Effect or, if so qualified, shall have
43
ceased to be true and correct, (ii) as of the Expiration Date, Beringer
shall not in all material respects have performed any obligation or
agreement and complied with its material covenants to be performed and
complied with by it under the Merger Agreement, or (iii) Beringer or any
Selling Stockholder shall have materially breached the Tender Agreement; or
(e) there shall have occurred and be continuing (i) any suspension or
limitation of trading in securities generally on the New York Stock
Exchange, Nasdaq Stock Market or Australian Stock Exchange (not including
any suspension or limitation of trading in any particular security) or any
setting of minimum prices for trading on such exchange, (ii) any banking
moratorium declared by the United States, New York or Australian authorities
or any suspension of payments in respect of banks in the United States,
(iii) any commencement of war, armed hostilities or other international or
national calamity directly involving the United States or Australia, in each
case having a material adverse effect on the functionality of financial
markets in the United States or Australia, or (iv) in the case of any of the
foregoing, existing at the time of commencement of the Offer, a material
acceleration or worsening thereof; or
(f) Xxxxxx'x and Beringer shall have agreed that Xxxxxx'x shall amend
the Offer to terminate the Offer or postpone the payment for Shares pursuant
thereto.
Subject to the obligations of Xxxxxx'x and Purchaser under the Merger Agreement,
the foregoing conditions are for the sole benefit of Xxxxxx'x and may be
asserted by Xxxxxx'x regardless of the circumstances (including any action or
inaction by Xxxxxx'x) giving rise to any such conditions and such conditions,
other than the Minimum Condition, may be waived by Xxxxxx'x in whole or in part
at any time and from time to time, in each case, in the exercise of the good
faith judgment of Xxxxxx'x and subject to the terms of the Merger Agreement. The
failure by Xxxxxx'x at any time to exercise any of the foregoing rights will not
be deemed a waiver of any such right and each such right will be deemed an
ongoing right which may be asserted at any time and from time to time.
A public announcement may be made of a material change in, or waiver of,
such conditions, to the extent required by Rules 14d-4(c) and 14d-6, and the
Offer may, in certain circumstances, be extended in connection with any such
change or waiver.
Purchaser acknowledges that the Commission believes that:
- if Purchaser is delayed in accepting the Shares it must either extend the
Offer or terminate the Offer and promptly return the Shares, and
- the circumstances in which a delay in payment is permitted are limited and
do not include unsatisfied conditions of the Offer, except with respect to
most required regulatory approvals.
15. CERTAIN LEGAL MATTERS AND REGULATORY APPROVALS
Except as described in this Offer to Purchase, based on a review of publicly
available filings made by Beringer with the Commission and other publicly
available information concerning Beringer, but without any independent
investigation, neither Purchaser nor Xxxxxx'x is aware of any license or
regulatory permit that appears to be material to the business of Beringer and
its subsidiaries, taken as a whole, that might be adversely affected by
Purchaser's acquisition of Shares as contemplated in this Offer to Purchase or
of any approval or other action by any governmental authority that would be
required for the acquisition or ownership of Shares by Purchaser as contemplated
in this Offer to Purchase. Should any such approval or other action be required,
Purchaser and Xxxxxx'x presently contemplate that such approval or other action
will be sought, except as described below under "State Takeover Laws." There can
be no assurance, however, that any such approval or other action, if needed,
would be obtained or would be obtained without substantial conditions or that
failure to obtain any such approval or other action might not result in
consequences adverse to Xxxxxxxx'x business or that certain parts of Xxxxxxxx'x
business might not have to be disposed of if such approvals were not
44
obtained or other actions were not taken or in order to obtain any such approval
or other action. If certain types of adverse action are taken with respect to
the matters discussed below, Purchaser could decline to accept for payment or
pay for any Shares tendered. See Section 14 above for certain conditions to the
Offer.
STATE TAKEOVER LAWS. A number of states throughout the United States
(including Delaware, where Beringer is incorporated) have enacted takeover
statutes that purport, in varying degrees, to be applicable to attempts to
acquire securities of corporations that are incorporated or have assets,
stockholders, executive offices or places of business in those states. To the
extent that certain provisions of certain of these state takeover statutes
purport to apply to the Offer or the Merger, Xxxxxx'x and Purchaser believe that
such laws conflict with federal law and constitute an unconstitutional burden on
interstate commerce. In XXXXX X. MITE CORP., the Supreme Court of the United
States invalidated on constitutional grounds the Illinois Business Takeover Act,
which, as a matter of state securities law, made certain corporate acquisitions
more difficult. In CTS CORP. V. DYNAMICS CORP. OF AMERICA, however, the Supreme
Court of the United States held that a state may, as a matter of corporate law
and, in particular, those laws concerning corporate governance, constitutionally
disqualify a potential acquiror from voting on the affairs of a target
corporation without prior approval of the remaining stockholders, provided that
the laws were applicable only under certain conditions. Subsequently, in TLX
ACQUISITION CORP. V. TELEX CORP., a Federal district court in Oklahoma ruled
that the Oklahoma statutes were unconstitutional insofar as they apply to
corporations incorporated outside Oklahoma in that they would subject such
corporations to inconsistent regulations. Similarly, in TYSON FOODS, INC. X.
XXXXXXXXXX, a Federal district court in Tennessee ruled that four Tennessee
takeover statutes were unconstitutional as applied to corporations incorporated
outside Tennessee. This decision was affirmed by the United States Court of
Appeals for the Sixth Circuit. In December 1988, a Federal district court in
Florida held, in GRAND METROPOLITAN PLC X. XXXXXXXXXXX, that the provisions of
the Florida Affiliated Transactions Act and Florida Control Share Acquisition
Act were unconstitutional as applied to corporations incorporated outside of
Florida.
Purchaser has not attempted to comply with any state takeover statutes in
connection with the Offer or the Merger although, pursuant to the Merger
Agreement, Beringer has represented that the Beringer Board has taken
appropriate action to render Section 203 of the DGCL inapplicable to the Offer,
the Merger and the transactions contemplated by the Merger Agreement and the
Tender Agreement. Purchaser reserves the right to challenge the validity or
applicability of any state law allegedly applicable to the Offer or the Merger,
and nothing in this Offer to Purchase nor any action taken in connection
herewith is intended as a waiver of that right. In the event that it is asserted
that one or more state takeover statutes apply to the Offer or the Merger, and
it is not determined by an appropriate court that such statute or statutes do
not apply or are invalid as applied to the Offer or the Merger, as applicable,
Purchaser may be required to file certain documents with, or receive approvals
from, the relevant state authorities, and Purchaser might be unable to accept
for payment or purchase Shares tendered pursuant to the Offer or be delayed in
continuing or consummating the Offer. In such case, Purchaser may not be
obligated to accept for purchase, or pay for, any Shares tendered. See Section
14.
ANTITRUST. Under the provisions of the HSR Act applicable to the Offer, the
purchase of Shares under the Offer may be consummated after the expiration of a
15-calendar-day waiting period following the filing by Purchaser of a
Notification and Report Form with respect to the Offer, unless Purchaser
receives a request for additional information or documentary material from the
Antitrust Division of the United States Department of Justice (the "Antitrust
Division") or the Federal Trade Commission (the "FTC") or unless early
termination of the waiting period is granted. Such filing was made on August 29,
2000, and such waiting period will expire at 11:59 p.m. on September 13, 2000.
If, however, within the initial 15-day waiting period, either the Antitrust
Division or the FTC requests additional information or documentary material from
Purchaser concerning the Offer, the waiting period will be
45
extended and would expire 11:59 p.m., New York City time, on the tenth calendar
day after the date of substantial compliance by Purchaser with such request.
Only one extension of the waiting period pursuant to a request for additional
information is authorized by the HSR Act. Thereafter, the waiting period may be
extended only by court order or with the consent of Purchaser. In practice,
complying with a request for additional information or documentary material can
take a significant amount of time. In addition, if the Antitrust Division or the
FTC raises substantive issues in connection with a proposed transaction, the
parties frequently engage in negotiations with the relevant governmental agency
concerning possible means of addressing those issues and may agree to delay
consummation of the transaction while the negotiations continue. For information
regarding the obligations of Beringer, Xxxxxx'x and Purchaser in this regard,
see "The Merger Agreement--Consents, Approvals and Filings" in Section 12.
The FTC and the Antitrust Division frequently scrutinize the legality under
the antitrust laws of transactions such as Purchaser's proposed acquisition of
Beringer. At any time before or after Purchaser's purchase of Shares pursuant to
the Offer, the Antitrust Division or the FTC could take such action under the
antitrust laws as it deems necessary or desirable in the public interest,
including seeking to enjoin the purchase of Shares pursuant to the Offer or the
consummation of the Merger or seeking the divestiture of Shares acquired by
Purchaser or the divestiture of substantial assets of Xxxxxx'x or its
subsidiaries, or Beringer or its subsidiaries. Private parties may also bring
legal action under the antitrust laws in certain circumstances. While Xxxxxx'x
and Purchaser believe that the Offer and the Merger do not involve a violation
of antitrust laws, there can be no assurance that a challenge to the Offer on
antitrust grounds will not be made or, if such a challenge is made, of the
result of that challenge. See Section 14 for certain conditions to the Offer,
including conditions with respect to litigation.
16. FEES AND EXPENSES
UBS Warburg LLC is acting as Dealer Manager in connection with the Offer and
as financial advisor to Xxxxxx'x in connection with the proposed acquisition of
Beringer by Xxxxxx'x, for which services UBS Warburg LLC will receive customary
compensation. In addition, Xxxxxx'x has agreed to reimburse UBS Warburg LLC for
its reasonable expenses incurred in rendering its services (including reasonable
legal expenses) under its engagement agreement with Xxxxxx'x and has agreed to
indemnify UBS Warburg LLC against certain liabilities and expenses in connection
with the Offer and the Merger, including certain liabilities under the federal
securities laws. UBS Warburg LLC from time to time renders various investment
banking services to Xxxxxx'x and its affiliates for which it is paid customary
fees.
In the ordinary course of its business, UBS Warburg LLC engages in
securities trading, market-making and brokerage activities and may, at any time,
hold long or short positions and may trade or otherwise effect transactions in
securities of Beringer and Xxxxxx'x.
XxxXxxxxx Partners, Inc. has been retained by Purchaser as Information Agent
in connection with the Offer. The Information Agent may contact holders of
Shares by mail, telephone, telex, telegraph and personal interview and may
request brokers, dealers and other nominee stockholders to forward material
relating to the Offer to beneficial owners of Shares. Purchaser will pay the
Information Agent reasonable and customary compensation for all such services in
addition to reimbursing the Information Agent for reasonable out-of-pocket
expenses in connection therewith.
In addition, Equiserve, L.P. has been retained as the Depositary. Purchaser
will pay the Depositary reasonable and customary compensation for its services
in connection with the Offer, will reimburse the Depositary for its reasonable
out-of-pocket expenses in connection therewith and will indemnify the Depositary
against certain liabilities and expenses in connection therewith, including
certain liabilities under the federal securities laws.
46
Except as set forth above, neither Xxxxxx'x nor Purchaser will pay any fees
or commissions to any broker dealer or other person for soliciting tenders of
Shares pursuant to the Offer. Brokers, dealers, commercial banks and trust
companies and other nominees will, upon request, be reimbursed by Xxxxxx'x or
Purchaser for customary clerical and mailing expenses incurred by them in
forwarding offering materials to their customers.
17. MISCELLANEOUS
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) stockholders residing in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the securities,
blue sky or other laws of the jurisdiction. However, Purchaser may, in its
discretion, take such action as it may deem necessary to make the Offer in any
jurisdiction and extend the Offer to stockholders in that jurisdiction. In any
jurisdiction where the securities, blue sky or other laws require the Offer to
be made by a licensed broker or dealer, the Offer will be deemed to be made on
behalf of Purchaser by UBS Warburg LLC or one or more registered brokers or
dealers that are licensed under the laws of the jurisdiction.
Purchaser has filed with the Commission the Schedule TO pursuant to Section
14(d)(1) of the Exchange Act and Rule 14d-3 promulgated thereunder, containing
certain additional information with respect to the Offer. The Schedule TO and
any amendments to the Schedule TO, including exhibits, may be examined and
copies may be obtained from the Commission in the manner set forth in Section 8
above (except that they will not be available at the regional offices of the
Commission).
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF PURCHASER NOT CONTAINED IN THIS OFFER TO PURCHASE OR
IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, THE INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
Neither the delivery of this Offer to Purchase nor any purchase pursuant to
the Offer will under any circumstances create any implication that there has
been no change in the affairs of Xxxxxx'x, Purchaser, Beringer or any of their
respective subsidiaries since the date any information is furnished or the date
of this Offer to Purchase.
BORDEAUX ACQUISITION CORP.
SEPTEMBER 1, 2000
47
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF XXXXXX'X AND PURCHASER
A. DIRECTORS AND EXECUTIVE OFFICERS OF XXXXXX'X
The following table sets forth the name, present principal occupation or
employment and material occupations, positions, offices or employment for the
past five years of each director and executive officer of Xxxxxx'x. Unless
otherwise indicated below:
- each individual has held his or her positions for more than the past five
years,
- the business address of each person is 00 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxx,
Xxxxxxxx Xxxxxxxxx 0000, and
- all directors and officers listed below are citizens of Australia other
than Xx. Xxxxxx who is a citizen of the United States. Directors are
identified with a single asterisk.
PRESENT PRINCIPAL OCCUPATION OR
NAME AGE EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY
------------------------------------------ -------- -------------------------------------------
Xxxxxx Xxxxxx Xxxxxx 57 Xx. Xxxxxx has been President and Chief
Executive Officer of Xxxxxx'x for the past
five years.
Xxxxx Xxxxxxx Xxxxxx 59 Mr. Xxxxxx has served as the Senior Vice
President of Commercial Affairs of Xxxxxx'x
since 1992.
Xxxx Xxxxxxx X'Xxxxxx 59 Xx. X'Xxxxxx was the Managing Director of
Carlton & United Breweries Limited, a
subsidiary of Xxxxxx'x from 1995 through
April 2000. Xx. X'Xxxxxx has served as
Deputy Chief Executive Officer of Xxxxxx'x
since April 2000.
Xxxxxx Xxxxx X'Xxx 45 Xx. X'Xxx was the Vice President of Lead
Enterprise of Xxxxxx'x from 1995 through
1997 and the Vice President of Strategy and
Development from January 1997 until August
1997. He has served as Xxxxxx'x Chief
Financial Officer since that time.
Xxxxxx Xxxxxx Xxxxxxxxxxx 58 Xx. Xxxxxxxxxxx has been with Xxxxxx'x
since November 1984 and serves as a Senior
Vice President.
Xxxxxxx Xxxxxx Xxxx* 59 Xx. Xxxx is Chairman of the Board and has
served as a Director of Xxxxxx'x since
1996. In addition, he has served as a
Director of both Commonwealth Bank of
Australia Limited (located at 00 Xxxxxx
Xxxxx, Xxxxxx XXX Xxxxxxxxx) and National
Foods Limited (located at Queens Road,
Melbourne, Victoria Australia) since 1997,
and the Managing Director of Global
Beverages of Cadbury Schweppes, p.l.c.
(located at 00 Xxxxxxxx Xxxxxx, Xxxxxx
XXX 000, XX) since April 1996.
I-1
PRESENT PRINCIPAL OCCUPATION OR
NAME AGE EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY
------------------------------------------ -------- -------------------------------------------
Xxxxxxxx Xxxxxxx Xxxxxxxxxx* 52 Xx. Xxxxxxxxxx is the Chief Executive
Officer of Aspect Computing Pty Ltd.
(located at 000 Xxxxxxxxxx Xxxx, Xxxxxxxxx
Xxxxxxxxx 0000) and has served as Managing
Director of Aspect since 1974. She has
served as a Director of Xxxxxx'x since
1999.
Xxxxx Xxxxxx* 66 Xx. Xxxxxx has been self-employed as a
principal of Xxxxx Xxxxxx & Associates
(located at Level 0, 000 Xx. Xxxxx Xxxx,
Xxxxxxxxx Xxxxxxxxx 0000) for the previous
five years. He has served as a Director of
Xxxxxx'x since 1993. He is also Chairman of
Portfolio Partners Limited, Biota Holdings
Limited and Centro Properties Limited and a
Director of ICI Australia Limited, AWA
Limited and Norwich Union Australia
Limited.
Xxxxxxxx Xxxxxx Xxxxx* 66 Xx. Xxxxx is a self-employed chartered
accountant. His business address is
Level 00, 00 Xxxxxxx Xx., Xxxxxxxxx
Xxxxxxxxx. He has served as a Director of
Xxxxxx'x since 1991.
Xxxxxx Xxxxxxx XxXxxxxx* 61 Xx. XxXxxxxx held senior finance roles for
BHP Co. Ltd. until 1999 including the
Executive Director of Finance for BHP Co.
Ltd. (located at 000 Xxxxxx Xxxxxx,
Xxxxxxxxx Xxxxxxxxx) from 1956 through
1999. He has also served as a Director of
both Xxxxxx Limited (located at King
Xxxxxxx Street, Adelaide Australia) and
Were Securities Limited (located at
000 Xxxxxxx Xxxxxx, Xxxxxxxxx Xxxxxxxxx)
since 1999 and a Director of Nufarm Limited
(located at Farm Road, Laverton North
Australia) since January of this year.
Xx. XxXxxxxx'x business address is 00 Xxxx
Xxxx, Xxxxxx Xxxx, Xxxxxxxx Xxxxxxxxx 0000.
He has served as a Director of Xxxxxx'x
since April 1999.
Xxxxx Xxxxx Xxxxx 42 Xx. Xxxxx was the Managing Director of
Cellarmasters Pty Ltd. (located at
Xxxxx 00, 000 Xxxxxx Xxxxxx, Xxxxx
Xxxxxxxx, XXX Xxxxxxxxx 2022) from 1987
through 1997. After this time he became the
Chief Operating Officer of Global Wine
Clubs, Mildara Blass Limited, a subsidiary
of Xxxxxx'x (located at 000 Xxxxxxxx Xx.,
Xxxxxxx Xxxx, Xxxxxxxx Xxxxxxxxx). Since
August 1999, Xx. Xxxxx has served as the
Managing Director of Mildara Blass Limited.
I-2
PRESENT PRINCIPAL OCCUPATION OR
NAME AGE EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY
------------------------------------------ -------- -------------------------------------------
Xxxxx Xxxxxxx Xxxx 48 Xx. Xxxx was the President of Kraft General
Foods (Asia) Ltd. (located at 000X Xxx
Xxxxxxx Xxxxx, 00 Xxxxxxxxx, Xxxx Xxxx)
from 1991 through 1996. Xx. Xxxx was the
Managing Director of Xxxxxx'x Asia from
1997 through March 2000. Xx. Xxxx has been
Managing Director of CUB since March 2000.
Xxxxxxx X. Xxxxxx 54 Xx. Xxxxxx was an Executive Director of
Courage Breweries (located in Staines,
England) from 1990 through 1995. From
January 1996, Xx. Xxxxxx has served as the
Senior Vice President of Xxxxxx'x
International. He is currently the Managing
Director of Xxxxxx'x Brewing International.
Xx. Xxxxxx is a citizen of the United
States of America.
B. DIRECTORS AND EXECUTIVE OFFICERS OF PURCHASER
The directors and executive officers of Purchaser are Xxxxxx X. Xxxxxx,
Xxxxxx X. X'Xxx,
Xxxxx X. Xxxxxx and Xxxxx X. Xxxxx. Messrs. Xxxxxx, X'Xxx, Xxxxxx and Xxxxx are
also executive officers of Xxxxxx'x. Information concerning the name, present
principal occupation or employment and material occupation, positions, offices
or employment for the past five years of Messrs. Xxxxxx, X'Xxx, Xxxxxx and Xxxxx
are set forth in the table of the directors and executive officers of Xxxxxx'x.
All directors and executive officers of Purchaser are citizens of Australia.
I-3
Manually signed facsimile copies of the Letter of Transmittal, properly
completed and duly signed, will be accepted. The Letter of Transmittal,
certificates for Shares and any other required documents should be sent or
delivered by each stockholder of Beringer or his broker, dealer, commercial
bank, trust company or other nominee to the Depositary, at one of the addresses
set forth below:
THE DEPOSITARY FOR THE OFFER IS:
EQUISERVE, L.P.
BY HAND: BY MAIL BY OVERNIGHT COURIER:
Securities Transfer & Equiserve, L.P. Equiserve, L.P.
Reporting Services, Inc. Attn: Corporate Actions Mail Stop 45-01-40
c/o Equiserve, L.P. P.O. Box 8029 000 Xxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx,Xxxxxxxx Xxxxxx, XX 00000-0000 Xxxxxx, XX 00000
Xxx Xxxx, XX 00000
BY FACSIMILE TRANSMISSION:
(000) 000-0000
FOR INFORMATION TELEPHONE:
(000) 000-0000
(Call Collect)
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone numbers
listed below. Additional copies of this Offer to Purchase, the Letter of
Transmittal and other tender offer materials may be obtained from the
Information Agent and the Dealer Manager as set forth below and will be
furnished promptly at Purchaser's expense. You may also contact your broker,
dealer, commercial bank, trust company or other nominee for assistance
concerning the Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
MACKENZIE PARTNERS, INC.
000 XXXXX XXXXXX
XXX XXXX, XX 00000
XXXXX@XXXXXXXXXXXXXXXXX.XXX
(000) 000-0000 (CALL COLLECT)
OR
TOLL FREE (000) 000-0000
THE DEALER MANAGER FOR THE OFFER IS:
UBS WARBURG LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Call Collect: (000) 000-0000
